Jeffrey S. Sarver v. The Hurt Locker LLC et al

Filing 20

MOTION to Dismiss for Lack of Jurisdiction , Improper Venue, and Failure to State a Claim by KATHRYN BIGELOW, MARK BOAL. Responses due by 7/6/2010 (Attachments: #1 Brief In Support of Motion to Dismiss for Lack of Personal Jurisdiction, Improper Venue, and Failure to State a Claim and, in the Alternative, to Transfer Venue, #2 Declaration of Mark Boal, #3 Declaration of Kathryn Bigelow, #4 Text of Proposed Order, #5 Certificate of Service)(ORLOFSKY, STEPHEN) [Transferred from New Jersey on 11/23/2010.]

BLANK ROME LLP
A Pennsylvania LLP
STEPHEN M. ORLOFSKY
New Jersey Resident Partner
ANDREW J. HUGHES
301 Carnegie Center
Princeton, NJ 08540
Phone: [phone]
Facsimile: [phone]
Attorneys for Defendants
Mark Boal and Kathryn Bigelow
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
:
HON. DENNIS M. CAVANAUGH
:
SGT. JEFFREY S. SARVER,
:
CIVIL ACTION NO. 2:10-cv-01076
:
Plaintiff,
:
Oral Argument Requested
:
v.
:
:
THE HURT LOCKER, LLC, MARK
:
BOAL, KATHRYN BIGELOW, GREG
(Filed Electronically)
:
SHAPIRO, NICOLAS CHARTIER,
:
TONY MARK, DONALL McCUSKER,
Return Date: July 19, 2010
:
SUMMIT ENTERTAINMENT, LLC,
:
VOLTAGE PICTURES, LLC,
:
GROSVENOR PARK MEDIA, LP,
:
FIRST LIGHT PRODUCTIONS, INC.,
:
KINGSGATE FILMS, INC. and
PLAYBOY ENTERPRISES, INC., Jointly :
:
and Severally,
:
:
Defendants.
______________________________________________________________________________
DEFENDANTS MARK BOAL’S AND KATHRYN BIGELOW’S MEMORANDUM OF
LAW IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF’S COMPLAINT
OR, IN THE ALTERNATIVE, TO TRANSFER VENUE
_____________________________________________________________________________

900200.00001/50380030v.1

TABLE OF CONTENTS
Page
I. FACTUAL BACKGROUND .....................................................................................................1
II. LEGAL ARGUMENT ................................................................................................................3
A.

This Court Should Dismiss Plaintiff’s Complaint under Fed. R. Civ. P.
12(b)(2) Because it Cannot Assert Personal Jurisdiction over Boal or
Bigelow ................................................................................................................................3

B.

This Court Should Dismiss Plaintiff’s Complaint under Fed. R. Civ. P.
12(b)(3) Because it was Brought in an Improper Venue .....................................................6

C.

This Court Should Dismiss Plaintiff’s Complaint or Transfer this Action
under 28 U.S.C. § 1406 Because it was Brought in an Improper Venue.............................8

D.

In the Alternative, this Court Should Transfer this Action under 28 U.S.C.
§ 1404(a) to the Central District of California....................................................................8

E.

Plaintiff’s Claims Should be Dismissed Under Fed. R. Civ. P. 12(b)(6)
Because they Fail to State a Claim Upon Which Relief can be Granted...........................11
1.
2.

This Court Should Dismiss Plaintiff’s Defamation and False Light
Claims Against Bigelow and Boal .................................................................................13

3.

This Court Should Dismiss Plaintiff’s Breach of Contract Claim Against
Bigelow Because She was Not in Privity to a Contract with Plaintiff...........................14

4.

This Court Should Dismiss Plaintiff’s Intentional Infliction of
Emotional Distress Claim Against Boal and Bigelow Because Plaintiff
Failed to Allege Sufficient Facts to Support his Claim..................................................15

5.

This Court Should Dismiss Plaintiff’s Fraud Claim Against Bigelow
Because Plaintiff has Failed to State a Claim Upon Which Relief Can be
Granted ...........................................................................................................................16

6.

III.

This Court Should Dismiss Plaintiff’s Right of Publicity Claim Against
Bigelow and Boal Because it is Barred by the First Amendment ..................................11

This Court Should Dismiss Plaintiff’s Constructive Fraud/Negligent
Misrepresentation Claim Against Boal and Bigelow Because Plaintiff
has Failed to State a Claim Upon Which Relief Can be Granted ..................................17

CONCLUSION ....................................................................................................................19

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TABLE OF AUTHORITIES
Page(s)
CASES
Am. Tel. & Tel. Co. v. MCI Commc’ns Corp.,
736 F. Supp. 1294 (D.N.J. 1990) ...............................................................................................9
Banco Popular N. Am. v. Gandi,
184 N.J. 161 (2005) .................................................................................................................16
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007).................................................................................................................11
Buckley v. Trenton Sav. Fund Soc.,
111 N.J. 355 (1988) .................................................................................................................15
Close v. New Line Cinema Corp.,
1994 U.S. Dist. LEXIS 19703 (N.D. Ohio Sept. 12, 1994)...................................................4, 5
D’Jamoos v. Pilatus Aircraft Ltd.,
566 F.3d 94 (3d Cir. 2009).................................................................................................3, 4, 5
Daly v. Viacom, Inc.,
238 F. Supp. 2d 1118 (N.D. Cal. 2002) ...................................................................................12
DeAngelis v. Hill,
180 N.J. 1 (2004) .....................................................................................................................14
Dollar Sav. Bank v. First Sec. Bank, N.A.,
746 F.2d 208 (3d Cir. 1984).......................................................................................................3
Ferguson v. Nat’l Broadcasting Co., Inc.,
584 F.2d 111 (5th Cir. 1978) .....................................................................................................6
Frederico v. Home Depot,
507 F.3d 188 (3d Cir. 2007).....................................................................................................17
G.D. v. Kenny,
411 N.J. Super. 176 (App. Div. 2009) .....................................................................................15
Genesis Int’l Holdings v. Northrop Grumman Corp.,
2009 U.S. Dist. LEXIS 74282 (D.N.J. Aug. 21, 2009)............................................................13
Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408 (1984)...................................................................................................................3

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IMO Indus., Inc. v. Kiekert AG,
155 F.3d 254 (3d Cir. 1998)...................................................................................................3, 4
Inman v. Thawley,
297 Fed Appx. 683 (9th Cir. 2008)..........................................................................................13
Int’l Shoe Co. v. Washington,
326 U.S. 310 (1945)...................................................................................................................3
Jumara v. St. Farm Ins. Co.,
55 F.3d 873 (3d Cir. 1995).........................................................................................................9
Karu v. Feldman,
119 N.J. 135 (1990) .................................................................................................................17
Liggett Group Inc. v. R.J. Reynolds Tobacco Co.,
102 F. Supp. 2d 518 (D.N.J. 2000) ..........................................................................................10
Morse v. Lower Merion Sch. Dist.,
132 F.3d 902 (3d Cir. 1997).....................................................................................................11
Papasan v. Allain,
478 U.S. 265 (1986).................................................................................................................11
Piper Aircraft Co. v. Reyno,
454 U.S. 235 (1981)...................................................................................................................9
Reliance Steel Prods. Co. v. Watson, Ess, Marshall & Enggas,
675 F.2d 587 (3d Cir. 1982).......................................................................................................3
Rogers v. Grimaldi,
875 F.2d 994 (2d Cir. 1989)...............................................................................................11, 12
Romaine v. Kallinger,
109 N.J. 282 (1988) .................................................................................................................13
Ruffin-Steinback v. DePasse,
267 F.3d 457 (6th Cir. 2001) ...................................................................................................12
Schad v. Borough of Mt. Ephraim,
452 U.S. 61 (1989)...................................................................................................................11
Seale v. Gramercy Pictures,
949 F. Supp. 331 (E.D. Pa. 1996) ............................................................................................12
South Broward Hosp. Dist. v. Medquist Inc.,
516 F. Supp. 2d 370 (D.N.J. 2007) ....................................................................................17, 18

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Spring Motors Distributors, Inc. v. Ford Motor Co.,
98 N.J. 555 (1985) ...................................................................................................................14
Tillman v. New Line Cinema Corp.,
295 Fed. Appx. 840 (7th Cir. 2008)...........................................................................................5
Turner v. Wong,
363 N.J. Super. 186 (App. Div. 2003) .....................................................................................16
Van Dusen v. Barrack,
376 U.S. 612 (1964)...................................................................................................................9
Wright v. Dunn,
2007 U.S. Dist. LEXIS 20234 (E.D. Mich. March 22, 2007)..................................................13
STATUTES
28 U.S.C. § 1391........................................................................................................................6, 19
28 U.S.C. § 1404..................................................................................................................8, 11, 19
28 U.S.C. § 1406........................................................................................................................8, 19
OTHER AUTHORITIES
Russell G. Donaldson, False Light Invasion of Privacy - Cognizability and Elements, 57
A.L.R. 4th 22 (2010)................................................................................................................13
Fed. R. Civ. P. 9(b) ..................................................................................................................16, 17
Fed. R. Civ. P. 12(b)(2)..........................................................................................................3, 6, 19
Fed. R. Civ. P. 12(b)(3)..........................................................................................................6, 7, 19
Fed. R. Civ. P. 12(b)(6)............................................................................................................11, 20
Fed. R. Civ. P. 45...........................................................................................................................10

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I.

FACTUAL BACKGROUND

Plaintiff, Jeffrey Sarver, is a Tennessee resident and a trained bomb disposal technician
for the United States Army. See Plaintiff’s Complaint (“Compl.”) ¶¶ 1, 26, 32, 34. In December
2004, Defendant, Mark Boal (“Boal”), a journalist, spent thirty days embedded within Plaintiff’s
unit in Baghdad, Iraq for the purpose of reporting and writing a magazine article. Id. at ¶¶ 39,
41-43. During that time, Plaintiff alleges that Boal became acquainted with the operations of
Plaintiff’s unit, as well as Plaintiff’s personal information and life story. Id. at ¶¶ 43-46.
Plaintiff claims that after his unit returned home, he met with Boal in Wisconsin to provide
information that Boal was seeking to complete his article. Id. at ¶¶ 52-53. Plaintiff alleges that
Boal then used Plaintiff’s personal information to write an article that was published in Playboy
Magazine by Defendant, Playboy Enterprises, Inc. (“Playboy”), and that the article later served
as a basis for the 2009 motion picture “The Hurt Locker” (the “Film”) Id. at ¶¶ 52, 63, 93.
Plaintiff alleges that prior to Boal’s embedment, Defendant Kathryn Bigelow (“Bigelow”), who
directed the Film, advised Boal that he could use his embedment to create a screenplay for a
commercial movie. Id. at ¶¶ 39-40.
Although the Film makes no reference to Plaintiff by name or otherwise, Plaintiff filed
this action in the United States District Court for the District of New Jersey against, among other
Defendants, Boal and Bigelow, alleging that the Film misappropriates his name and likeness,
invades his privacy, and depicts him in a derogatory manner to inflict emotional distress. See
Compl. ¶¶ 70-81, 92-96. Plaintiff also claims that the Defendants engaged in fraud and breached
a contract between Playboy and the United States Government to which he was a third-party
beneficiary. Id. at ¶¶ 82-91; 97-111.

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Boal and Bigelow both reside in California. See June 4, 2010 Declaration of Mark Boal
(“Boal Dec.”) at ¶ 2; June 4, 2010 Declaration of Kathryn Bigelow (“Bigelow Dec.”) at ¶ 3.
Neither Boal, nor Bigelow has transacted business, participated in meetings, or performed any
services in New Jersey. Boal Dec. at ¶¶ 3-4; Bigelow Dec. at ¶¶ 4-5. Neither Boal, nor Bigelow
is employed by a company that is incorporated, maintains offices or conducts business in New
Jersey. Boal Dec. at ¶ 5; Bigelow Dec. at ¶ 6. Neither Boal, nor Bigelow votes, owns property
or pays taxes in New Jersey. Boal Dec. at ¶ 6; Bigelow Dec. at ¶ 7. Neither Boal, nor Bigelow
has a telephone listing or bank account in New Jersey. Id.
None of the research or writing that Boal performed in connection with his 2005 article
or the 2009 Film took place in New Jersey. Boal Dec. at ¶ 8. In addition, all of the decisionmaking and contracts with which Bigelow was involved in connection with the making of “Hurt
Locker” occurred outside New Jersey. Bigelow Dec. at ¶ 8. No part of the Film’s production
took place in New Jersey. Principal photography was shot internationally in Jordan, and some
secondary footage was shot in Canada. Certification of Nicolas Chartier (“Chartier Cert.”) ¶ 9;
Bigelow Decl. at ¶ 9. The pre-production, domestic production and post-production work was
performed in California. Chartier Cert. at ¶ 10. The Film was initially screened at film festivals
outside the United States and was later subjected to a limited release throughout the United
States, including a few theatres in New Jersey during the time period that Plaintiff alleges to
have resided in the State. Id. at ¶¶ 10, 13; Certification of William Lewis, ¶¶ 5-8. Neither
Bigelow, nor Boal participated in the Film’s distribution.
None of the other named Defendants is a New Jersey resident. Compl. at ¶¶ 3-15. All of
the individual Defendants reside in California. Id.; May 30, 2010 Certification of Mark Boal, at
¶ 2. Moreover, with the exception of Playboy, which is headquartered in Illinois, all of the

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named entities are domiciled in California. Compl. ¶¶ 3-15. And Plaintiff alleges that all of the
Defendants conduct business in California. Id.

II.
A.

LEGAL ARGUMENT

This Court Should Dismiss Plaintiff’s Complaint under Fed. R. Civ. P. 12(b)(2)
Because it Cannot Assert Personal Jurisdiction over Boal or Bigelow
When a defendant raises a jurisdictional defense, the plaintiff bears the burden of

presenting facts to establish that jurisdiction is proper. D’Jamoos v. Pilatus Aircraft Ltd., 566
F.3d 94, 102 (3d Cir. 2009). New Jersey permits long-arm jurisdiction to the extent that it
comports with the United States Constitution’s Due Process Clause. IMO Indus., Inc. v. Kiekert
AG, 155 F.3d 254, 259 (3d Cir. 1998). The exercise of personal jurisdiction does not comport
with due process unless the defendant has “certain minimum contacts with [the forum] such that
the maintenance of the suit does not offend traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
There are two types of personal jurisdiction:
jurisdiction.

D’Jamoos, 566 F.3d at 102.

general jurisdiction and specific

General jurisdiction allows the court to assert

jurisdiction over a non-resident defendant for activities performed outside the forum, but does
not exist unless the defendant’s contacts with the forum are “continuous and systematic.”
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984). Far more than
mere minimum contacts with the forum are required to establish general jurisdiction:

the

contacts must be both “extensive and persuasive.” Reliance Steel Prods. Co. v. Watson, Ess,
Marshall & Enggas, 675 F.2d 587, 589 (3d Cir. 1982); Dollar Sav. Bank v. First Sec. Bank, N.A.,
746 F.2d 208, 212 (3d Cir. 1984).

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This Court cannot assert general jurisdiction over Boal or Bigelow because neither has
any contacts, much less the requisite “continuous and systematic” contacts, with New Jersey.
Boal and Bigelow both reside in California. Boal Dec. at ¶ 2; Bigelow Dec. at ¶ 3. Neither Boal,
nor Bigelow has transacted business, participated in meetings, or performed any services in New
Jersey. Boal Dec. at ¶¶ 3-4; Bigelow Dec. at ¶¶ 4-5. Neither Boal, nor Bigelow is employed by
a company that is incorporated, maintains offices or conducts business in New Jersey. Boal Dec.
at ¶ 5; Bigelow Dec. at ¶ 6. Neither Boal, nor Bigelow votes, owns property or pays taxes in
New Jersey. Boal Dec. at ¶ 6; Bigelow Dec. at ¶ 7. Neither Boal, nor Bigelow has a telephone
listing or bank account in New Jersey. Id. Thus, the assertion of general jurisdiction over Boal
and Bigelow would be manifestly inappropriate. See, e.g., Close v. New Line Cinema Corp.,
1994 U.S. Dist. LEXIS 19703, at **4-5, 7 (N.D. Ohio Sept. 12, 1994) (ruling that Ohio court
could not establish general jurisdiction over director or producer of motion picture “The
Lawnmower Man” because: they did not transact business in Ohio; they did not have mailing
addresses, telephone listings, or bank accounts in Ohio; and they did not pay state or local taxes
in Ohio).
Plaintiff would fare no better in attempting to establish specific jurisdiction over Boal and
Bigelow. Specific jurisdiction allows the court to exercise personal jurisdiction over a nonresident defendant for actions “arising out of” the defendant’s contact with the forum. IMO
Indus., Inc., 155 F.3d 258-59. To establish specific jurisdiction over a defendant, the plaintiff
must first prove that the defendant “purposefully directed [his or her] activities at the forum.”
D’Jamoos, 566 F.3d at 102. Then the plaintiff must establish that the litigation “arise[s] out of or
[is] related to” those activities. Id. That showing cannot be made here.

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Neither Boal, nor Bigelow has “purposefully directed” any activities at New Jersey.
Thus, this litigation cannot be said to “arise out of” and is not “related to” Boal’s or Bigelow’s
activities within the forum. Indeed, all of the actions that Boal and Bigelow took with regard to
the making of the Film occurred outside New Jersey. Boal never met with Plaintiff in New
Jersey; he traveled with Plaintiff’s military unit in Iraq and met with him in Wisconsin after his
unit returned home. Boal Dec. at ¶ 7. Further, none of the research or writing that Boal
performed in connection with his 2005 article or the 2009 Film took place in New Jersey. Id. at
¶ 8. Similarly, all of the decision-making and contracts with which Bigelow was involved in
connection with the making of the Film occurred outside New Jersey. Bigelow Dec. at ¶ 8. And
all of the filming and production of the Film took place outside of New Jersey; it was filmed
internationally in Jordan and Canada and was produced in California. Id. at ¶ 9.
Plaintiff alleges that this Court may exercise jurisdiction over all the Defendants because
they have “written, released, and distributed, the major motion film and DVD, ‘The Hurt
Locker’, to various movie theatres and retail stores located throughout the country, including
such movie theatres and retail stores located in the State of New Jersey.” Compl. at ¶ 17. This
position is unavailing for several reasons. First, neither Boal, nor Bigelow was involved with the
release or distribution of the Film or DVD; Boal wrote the screenplay and Bigelow directed the
Film. Second, the law is well established that this Court cannot assert personal jurisdiction over
Boal or Bigelow by virtue of the fact that the Film played in selected New Jersey theatres. See,
e.g., Close, 1994 U.S. Dist. LEXIS 19703, at *5-6 (ruling that Ohio court could not establish
specific jurisdiction over director or producer of film “The Lawnmower Man” because “[a]ll of
the[ir] activities . . . with respect to the motion picture and screenplay took place outside of
Ohio”); Tillman v. New Line Cinema Corp., 295 Fed. Appx. 840, 841-42 (7th Cir. 2008) (holding

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that, in copyright infringement action, district court properly dismissed screenwriter of major
motion picture John Q for lack of personal jurisdiction); Ferguson v. Nat’l Broadcasting Co.,
Inc., 584 F.2d 111, 112 (5th Cir. 1978) (television program’s theme song composer dismissed
from copyright infringement action for lack of personal jurisdiction).
This Court cannot assert general or specific jurisdiction over Boal or Bigelow. Thus,
Plaintiff’s claims against Boal and Bigelow should be dismissed under Fed. R. Civ. P. 12(b)(2)
for lack of personal jurisdiction.
B.

This Court Should Dismiss Plaintiff’s Complaint under Fed. R. Civ. P. 12(b)(3)
Because it was Brought in an Improper Venue
Because Plaintiff alleges that jurisdiction in this case is based on diversity of citizenship,

Compl. at ¶¶ 16, 17, his choice of venue must comply with 28 U.S.C. § 1391(a), which provides:
A civil action wherein jurisdiction is founded only on diversity of
citizenship may . . . be brought only in (1) a judicial district where
any defendant resides, if all defendants reside in the same State, (2)
a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is subject of the action is situated, or (3) a judicial
district in which any defendant is subject to personal jurisdiction at
the time the action is commenced, if there is no district in which
the action may otherwise be brought.
Boal and Bigelow incorporate by reference the arguments presented by Hurt Locker,
LLC, Voltage Pictures, LLC, and Nicolas Chartier in section II of their Brief in Support of their
Motion to Dismiss or, in the Alternative, to Transfer Venue (hereinafter the “Hurt Locker, LLC
Brief”) that this Court should dismiss Plaintiff’s Complaint because the District of New Jersey is
not a proper venue for this action. Indeed, none of the three prongs of § 1391(a) allows Plaintiff
to establish venue in this District.
Plaintiff cannot establish venue in this District under subsection (1) because all of the
Defendants do not reside in New Jersey. In fact, none of the Defendants resides in New Jersey.
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Compl. at ¶¶ 3-15. All of the individual Defendants reside in California. Id.; May 30, 2010
Certification of Mark Boal, at ¶ 2.

Moreover, with the exception of Playboy, which is

headquartered in Illinois, all of the named entities are domiciled in California. Compl. at ¶¶ 315. And Plaintiff alleges that all of the Defendants conduct business in California. (Id.).
Plaintiff cannot establish venue in this District under subsection (2) because “a
substantial part of the events or omissions giving rise to the claim” did not occur in New Jersey.
In fact, none of the alleged facts that Plaintiff advances to support his claims occurred in New
Jersey:
1.

Plaintiff alleges that Boal traveled with his military unit in Iraq, during
which time Plaintiff shared many aspects of his personal life with Boal
(Compl. at ¶¶ 39, 41-43);

2.

Plaintiff alleges that he met with Boal in Wisconsin after his unit returned
home from Iraq to allow Boal to complete his magazine article (Id. at 5253); and

3.

“The Hurt Locker” was filmed internationally in Jordan and Canada, and it
was produced in California (Chartier Cert. ¶¶ 9-10).

Plaintiff cannot establish venue in this District under subsection (3) because the action
could have been brought in another judicial district -- the Central District of California. Venue
in the Central District of California would have been proper because: (1) all of the Defendants
reside in California; and (2) “a substantial part of the events . . . giving rise to the claim” -including the pre-production, domestic production and post-production of the Film -- occurred in
that District.
For these reasons, this Court should dismiss Plaintiff’s Complaint under Fed. R. Civ. P.
12(b)(3) because the action was brought in an improper venue.

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C.

This Court Should Dismiss Plaintiff’s Complaint or Transfer this Action under
28 U.S.C. § 1406 Because it was Brought in an Improper Venue
28 U.S.C. § 1406 provides that “[t]he district court of a district in which is filed a case

laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice,
transfer such case to any district or division in which it could have been brought.” For the
reasons expressed in section (B) above, Plaintiff cannot establish venue in this District. Thus,
this Court should dismiss Plaintiff’s Complaint under § 1406. In the alternative, if this Court
determines that the interest of justice requires, it should transfer this action to the Central District
of California under § 1406 because, as discussed in section (B) above, this case could have been
brought in that District.
D.

In the Alternative, this Court Should Transfer this Action under 28 U.S.C. §
1404(a) to the Central District of California
28 U.S.C. § 1404(a) provides that a district court in which an action is properly venued

may transfer the action to a district where the action could have been brought if the convenience
of the parties and witnesses and the interest of justice so requires.

Section 1404(a) is

inapplicable here because this case is not properly venued in this District. Nevertheless, if the
Court determines that venue is proper in this District, it should exercise its discretion and transfer
this action to the Central District of California, which is a far more convenient forum to litigate
this action.1

1

For the reasons discussed in section (B) above, this action could have been originally brought in the Central
District of California.

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The purpose of § 1404(a) is to “prevent the waste of time, energy, and money and to
protect litigants, witnesses and the public against unnecessary inconvenience and expense.” Van
Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal quotations and citations omitted). In
determining whether to transfer an action under § 1404(a), courts consider several private
interest and public interest factors. Jumara v. St. Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir.
1995).

The private interest factors include:

(1) the plaintiff’s forum preference; (2) the

defendants’ forum preference; (3) whether the claim arose in another forum; (4) the convenience
of the parties as indicated by their relative physical and financial condition; (5) the convenience
of the witnesses, but only to the extent that witnesses may be unavailable for trial in one of the
fora; and (6) the location of books and records, limited to the extent the files could not be
produced in another forum. Id. at 879. The public interest factors include: (1) the enforceability
of the judgment; (2) practical considerations that could make the trial easy, expeditious, or
inexpensive; (3) the administrative difficulty in the two fora resulting from court congestion; (4)
the local interest in deciding local controversies at home; (5) the public policies of the fora; and
(6) in diversity cases, the familiarity of the trial court with applicable state law. Id. at 879-80.
Boal and Bigelow incorporate by reference the arguments presented in section III of the
Hurt Locker, LLC Brief and in section III(B) of Playboy Enterprises, Inc.’s Memorandum of
Points and Authorities in Support of their Motion to Transfer that the private and public interest
factors tip decidedly in favor of transferring this action to the Central District of California. To
summarize the analysis of the private interest factors:
1.

Plaintiff’s Choice of Forum: This factor is entitled to little deference
because Plaintiff does not reside in New Jersey, and all of the alleged
operative events occurred outside of the State. Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 255-56 (1981); Am. Tel. & Tel. Co. v. MCI
Commc’ns Corp., 736 F. Supp. 1294, 1306 (D.N.J. 1990).
9

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2.

Defendants’ Forum Preference: All the Defendants are located in
California and would prefer to litigate this action in the Central District of
California, which has the greatest connection to the operative facts.

3.

Whether Plaintiff’s Claims Arose in Another Forum: As discussed in
section (B) above, Plaintiff does not allege that any of his claims arose
from conduct occurring in New Jersey.

4.

Convenience of the Parties: None of the parties is located in New Jersey.

5.

Convenience of the Witnesses: All of the Defendants and potential
witnesses, including the actor who played the lead role in the Film, Jeremy
Renner, are located in California.

6.

Access to Documentary Evidence: Because all of the parties and potential
witnesses reside in California, it is likely that all documentary evidence is
located there.

To summarize the analysis of the public interest factors:
1.

Enforceability of Judgment: Given the connection that the Central District
of California has with Defendants and the alleged operative facts,
Plaintiffs should be able to assert jurisdiction over all Defendants and
enforce any judgment in that District.

2.

Practical Considerations that would make Trial Easy and Expeditious:
This Court would encounter difficulty in compelling the testimony of key
non-party witnesses. See Fed. R. Civ. P. 45(c)(3)(A)(ii). It would be
easier to schedule motions and other court appearances in the Central
District of California.

3.

Local Interest in Deciding Local Controversies at Home: California has a
strong interest in this lawsuit because all Defendants reside and conduct
business there. New Jersey has no connection with the parties or the
alleged operative facts of this action. Therefore, it has no local interest,
and its citizens should not be burdened with jury duty in this action.
Liggett Group Inc. v. R.J. Reynolds Tobacco Co., 102 F. Supp. 2d 518
(D.N.J. 2000).

4.

Familiarity of Trial Court with Applicable State Law: New Jersey law
will not govern this action because the parties and alleged operative facts
have no relation to New Jersey. Conversely, California law is likely to
govern some or all of the issues.

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The private and public interest factors weigh heavily in favor of transferring this action.
Therefore, if this Court determines that venue is proper in this District, then it should transfer the
action under 28 U.S.C. § 1404 to the Central District of California.
E.

Plaintiff’s Claims Should be Dismissed Under Fed. R. Civ. P. 12(b)(6) Because
they Fail to State a Claim Upon Which Relief can be Granted
A plaintiff cannot survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6) unless he or

she provides the “grounds of his entitle[ment] to relief,” which requires “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and citation omitted). In this
regard, a plaintiff must advance factual allegations that “raise a right to relief above a speculative
level.” Id. at 555-56. In ruling on a motion to dismiss, a court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986);
see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n.8 (3d Cir. 1997) (holding that
courts deciding motions to dismiss must reject “legal conclusions, unsupported inferences,
unwarranted deductions, footless conclusions of law, or sweeping legal conclusions cast in the
form of factual allegations”).
1.

This Court Should Dismiss Plaintiff’s Right of Publicity Claim Against Bigelow
and Boal Because it is Barred by the First Amendment

Boal and Bigelow incorporate by reference the arguments presented in section (IV)(B) of
the Hurt Locker, LLC Brief that Plaintiff’s right of publicity claim should be dismissed because
it is barred by the First Amendment.
Motion pictures are expressive works protected by the First Amendment. Schad v.
Borough of Mt. Ephraim, 452 U.S. 61, 65 (1989); Rogers v. Grimaldi, 875 F.2d 994, 997 (2d Cir.

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1989) (“Movies, plays, books, and songs are all indisputably works of artistic expression and
deserve [First Amendment] protection.”). For that reason, the use of an individual’s likeness in
a motion picture does not infringe on his or her right of publicity. Daly v. Viacom, Inc., 238 F.
Supp. 2d 1118, 1123 (N.D. Cal. 2002) (“Under the First Amendment, a cause of action for
appropriation of another’s name and likeness may not be maintained against expressive works,
whether factual or fictional” (internal quotations and citations omitted)); Seale v. Gramercy
Pictures, 949 F. Supp. 331, 336 (E.D. Pa. 1996) (ruling that plaintiff’s right of publicity claim
premised on the theory that defendants used his name and likeness in a film and on the cover of
home video failed as a matter of law); Ruffin-Steinback v. DePasse, 267 F.3d 457 (6th Cir. 2001)
(ruling that right of publicity claim failed as a matter of law because use of plaintiffs’
fictionalized likenesses in mini-series was protected by First Amendment). Indeed, a plaintiff
whose likeness has been used in an expressive work cannot state a right of publicity claim unless
he or she can show that the defendant used his or her likeness in a manner wholly unrelated to
the content of the Film. Rogers, 875 F.2d at 1004-05 (ruling that right of publicity claim failed
because defendants’ use of plaintiff’s name in movie title was “clearly related to the content of
the movie”); Seale, 949 F. Supp. at 336 (“However, if the name or likeness is used solely to
attract attention to a work that is not related to the identified person, the user may be subject to
liability.” (internal quotations and citation omitted)).
Plaintiff’s right of publicity claim against Boal and Bigelow fails as a matter of law
because it is premised upon the theory that they used his likeness and persona for the content of
the Film.

See Compl. ¶¶ 70-81.

Accordingly, Plaintiff’s claim is barred by the First

Amendment, and Count I of the Complaint should be dismissed.

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2.

This Court Should Dismiss Plaintiff’s Defamation and False Light Claims Against
Bigelow and Boal

Plaintiff’s defamation and false light claims against Boal and Bigelow fail as a matter of
law and should be dismissed. First, to state a defamation or false light claim, the plaintiff must
allege facts suggesting that he or she was the subject of the allegedly offending publication or
statement.

Romaine v. Kallinger, 109 N.J. 282, 289, 294 (1988) (affirming dismissal of

defamation and false light claims after ruling that plaintiff must be subject of offending
publication to maintain defamation or false light action); Genesis Int’l Holdings v. Northrop
Grumman Corp., 2009 U.S. Dist. LEXIS 74282, at *7, 10-12 (D.N.J. Aug. 21, 2009) (dismissing
defamation claim because allegedly defamatory material was not “of and concerning Plaintiff
personally”); Inman v. Thawley, 297 Fed Appx. 683, 684 (9th Cir. 2008) (defamation claim
failed because statements did not concern plaintiff); Wright v. Dunn, 2007 U.S. Dist. LEXIS
20234, at *16 (E.D. Mich. March 22, 2007) (“[I]t is apparent that Plaintiff cannot maintain an
action against Defendant . . . for a statement that did not concern him.”); Russell G. Donaldson,
False Light Invasion of Privacy – Cognizability and Elements, 57 A.L.R. 4th 22, at 122 (2010)
(“As a matter of common sense, there can be no recovery for a false depiction … if the public
cannot be made aware that the plaintiff is … being depicted …. ”).
Plaintiff is not identified, by name or otherwise, at any point during the Film. In fact, the
Film contains a disclaimer stating that it is a “work of fiction” and “any similarity to or
identification with the name, character, or history of any actual persons . . . is entirely
coincidental and unintentional.” Compl. ¶ 63. Thus, his defamation and false light claims are
defective, and this Court should dismiss Counts II and III against Boal and Bigelow.

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Second, Plaintiff’s defamation claim against Boal and Bigelow fails as a matter of law
because he has not alleged that they made a defamatory statement of fact about him. See, e.g.,
DeAngelis v. Hill, 180 N.J. 1, 14 (2004) (ruling that “[s]tatements of opinion, as a matter of
constitutional law, enjoy absolute immunity,” and dismissing defamation claim). In this regard,
Plaintiff contends that the Defendants portrayed him as “a bad father who did not love his son,”
“messed up,” “reckless,” “unstable,” and generally irresponsible. Compl. ¶ 79. But he fails to
allege that Boal or Bigelow uttered a single defamatory statement of fact, capable of objective
verification, concerning him. Id. (“A factual statement can be proved or disproved objectively
while an opinion statement generally cannot.”). Thus, his defamation claim should be dismissed.
3.

This Court Should Dismiss Plaintiff’s Breach of Contract Claim Against Bigelow
Because She was Not in Privity to a Contract with Plaintiff

Bigelow incorporates by reference the arguments presented in section (IV)(C) of the Hurt
Locker, LLC Brief that Plaintiff’s breach of contract claim should be dismissed. Plaintiff fails to
allege any facts to support his allegation that Bigelow was “privy” to the alleged contracts
between Playboy and the United States Government or between Playboy and Plaintiff. See
Compl. at ¶ 88. Thus, his breach of contract claim against Bigelow is defective as a matter of
law and should be dismissed. See Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J.
555, 590 (1985) (“The absence of privity . . . generally constitute[s] [] an insurmountable
obstacle to recovery for losses for breach of contract.”) (Handler, J., concurring).

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4.

This Court Should Dismiss Plaintiff’s Intentional Infliction of Emotional Distress
Claim Against Boal and Bigelow Because Plaintiff Failed to Allege Sufficient
Facts to Support his Claim

To state a claim for intentional infliction of emotional distress, a plaintiff must allege
specific facts to suggest that the defendant: (1) acted intentionally or recklessly; (2) acted
outrageously; and (3) proximately caused Plaintiff to suffer severe distress. Buckley v. Trenton
Sav. Fund Soc., 111 N.J. 355, 366 (1988); G.D. v. Kenny, 411 N.J. Super. 176, 194 (App. Div.
2009).

The plaintiff must allege facts suggesting that the defendant’s conduct was “so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Buckley, 111 N.J. at 366.

It is the role of the Court to “determine[] whether outrageous conduct

could possibly be found as a matter of law based on the facts.” G.D., 411 N.J. Super. at 194.
Plaintiff’s claim for intentional infliction of emotional distress against Boal and Bigelow
fails as a matter of law because Plaintiff has not alleged facts to support a finding that Boal or
Bigelow engaged in conduct that is so “outrageous . . . and . . . extreme . . . as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Buckley, 111 N.J. at 366. In support of his claim, Plaintiff asserts that Boal and
Bigelow knew that the Film contained scenes that would embarrass him and place him at
increased risk of harm during future deployments. Compl. at ¶ 93. But Plaintiff is not identified,
by name or otherwise, at any point in the Film. And he concedes that Defendants took measures
to protect any member of the United States Army, including Plaintiff, who could be inadvertently
linked to the Film’s characters, by including a disclaimer stating that: “[T]his is a work of
fiction. The characters and incidents portrayed and the names herein are fictitious, and any

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similarity to or identification with the name, character, or history of any actual persons living or
dead . . . is entirely coincidental and unintentional.” Compl. ¶ 63.
Furthermore, Plaintiff has failed to allege facts supporting his conclusory allegation that
he suffered “severe emotional distress.” Compl. ¶ 95. Plaintiff claims that the emotional distress
he has suffered consists of being laughed at by young soldiers and having to wonder whether his
peers will continue to respect and protect him. Id. at ¶ 69. These allegations cannot support a
conclusion that Plaintiff has suffered “severe emotional distress,” including physical illness or
serious psychological trauma, as a consequence of Boal’s or Bigelow’s alleged conduct. See,
e.g., Turner v. Wong, 363 N.J. Super. 186, 200 (App. Div. 2003) (ruling that “[s]evere emotional
distress is a severe and disabling emotional or mental condition which may be generally
recognized and diagnosed by trained professionals,” and that “[m]ere allegations of aggravation
[or] embarrassment . . . are insufficient as a matter of law” (internal quotations and citations
omitted)).
For these reasons, this Court should dismiss Count V of Plaintiff’s Complaint against
Boal and Bigelow.
5.

This Court Should Dismiss Plaintiff’s Fraud Claim Against Bigelow Because
Plaintiff has Failed to State a Claim Upon Which Relief Can be Granted

Plaintiff’s fraud claim against Bigelow should be dismissed for the reasons expressed in
section (E)(1) of the Hurt Locker, LLC Brief. To state a common-law fraud claim under New
Jersey law, a plaintiff must allege: (1) a material misrepresentation of fact; (2) knowledge or
belief by the defendant of its falsity; (3) intention that the other person rely on it; (4) reasonable
reliance thereon by the other person; and (5) resulting damage. Banco Popular N. Am. v. Gandi,
184 N.J. 161, 172-73 (2005). Under Fed. R. Civ. P. 9(b), a plaintiff is required to “state the
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circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of
the precise misconduct with which it is charged.” Frederico v. Home Depot, 507 F.3d 188, 200
(3d Cir. 2007) (internal quotations and citation omitted).

A plaintiff does not satisfy this

standard unless he or she “plead[s] or allege[s] the date, time, and place of the alleged fraud or
otherwise inject[s] precision or some measure of substantiation into a fraud allegation.” Id.
Plaintiff has failed to plead specific facts to support any of the elements of his fraud claim
against Bigelow. Instead, Plaintiff merely states that Bigelow received “the information [Boal]
gathered about Plaintiff and Plaintiff’s experiences,” and that during Boal’s embedment with
Plaintiff’s unit, all of the Defendants “were likely already in the process of writing a ‘movie’ for
their own material and commercial gain.” Compl. ¶¶ 100-01. That general allegation falls
woefully short of satisfying the pleading requirements of Fed. R. Civ. P. 9(b). Therefore, this
Court should dismiss Count VI against Bigelow.
6.

This Court Should Dismiss Plaintiff’s Constructive Fraud/Negligent
Misrepresentation Claim Against Boal and Bigelow Because Plaintiff has Failed
to State a Claim Upon Which Relief Can be Granted

To state a claim for negligent misrepresentation, a plaintiff must allege facts to support
the following elements:

(1) the defendant negligently provided false information; (2) the

plaintiff was a reasonably foreseeable recipient of that information; (3) the plaintiff justifiably
relied on the information; and (4) the false statements proximately caused plaintiff’s damages.
Karu v. Feldman, 119 N.J. 135, 147 (1990). Moreover, “in New Jersey, any tort of negligence
requires the plaintiff to prove that the putative tortfeasor breached a duty of care.” South
Broward Hosp. Dist. v. Medquist Inc., 516 F. Supp. 2d 370, 395 (D.N.J. 2007), aff’d, 258 Fed.
Appx. 466 (3d Cir. 2007). Consequently, “[i]f there is no duty owed to a plaintiff independent of
what the defendant owes plaintiff under a contract, a plaintiff may not maintain a tort claim (as a
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necessary element of the tort claim is absent).” Id. at 396 (dismissing plaintiff’s negligent
misrepresentation claim because plaintiffs “failed to plead that [defendant] owed a legally
cognizable duty to [p]laintiffs -- outside of [defendant’s] contractual duties -- for which
[p]laintiff [could] recover in tort”).
Plaintiff’s negligent misrepresentation claim against Boal and Bigelow fails as a matter of
law because Plaintiff has not plead facts suggesting that either individual owed him a duty of
care independent of their contractual duties. See South Broward Hosp. Dist., 516 F. Supp. 2d at
395 (“There are three general types of transactions where the duty to disclose arises: (1) where a
fiduciary relationship exists between the parties, (2) where the transaction itself calls for perfect
good faith and full disclosure, or (3) where one party expressly reposes a trust and confidence in
the other.” (internal quotations and citations omitted)). Plaintiff advances the naked assertion
that “Defendants owed to Plaintiff both a common law duty and a contractual duty by virtue of
the express and implied agreements entered into between BOAL/PLAYBOY and the United
States, and between BOAL/PLAYBOY and Plaintiff, to carefully and reasonably carry out any
publications regarding the Plaintiff.”

Compl. ¶ 108.

But that conclusory allegation is

insufficient to survive a motion to dismiss. Thus, this Court should dismiss Count VII of
Plaintiff’s Complaint against Boal and Bigelow.

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III.

CONCLUSION

For the reasons set forth above, Defendants, Mark Boal and Kathryn Bigelow,
respectfully request that this Court dismiss Plaintiff’s Complaint.

First, this Court should

dismiss Plaintiff’s Complaint under Fed. R. Civ. P. 12(b)(2) because it cannot assert personal
jurisdiction over Boal or Bigelow. This Court cannot assert general jurisdiction over Boal or
Bigelow because neither has any contacts with New Jersey, much less the requisite “continuous
and systematic” contacts. This Court cannot assert specific jurisdiction over Boal or Bigelow
because neither has “purposefully directed” any activities at New Jersey, and thus this litigation
does not “arise out of” their contact with the forum.
Second, this Court should dismiss Plaintiff’s Complaint under Fed. R. Civ. P. 12(b)(3)
because the District of New Jersey is an improper venue for this action. Indeed, Plaintiff cannot
satisfy any of the three prongs of 28 U.S.C. § 1391(a), which sets forth the venue requirements in
diversity actions. None of the Defendants resides in New Jersey, Plaintiff does not allege that a
“substantial part of the events or omissions giving rise to the claim” occurred in New Jersey, and
the action could have been brought in another judicial district -- the Central District of
California.
Third, the Court should dismiss Plaintiff’s Complaint or transfer the action to the Central
District of California under 28 U.S.C. § 1406, which permits a district court in which venue is
improper to dismiss the action or, if the interests of justice so require, to transfer to a district in
which the action could have been brought.
In the alternative, if this Court determines that venue is proper in this district, it should
transfer this action to the Central District of California under 28 U.S.C. § 1404(a). Neither the
Plaintiff, nor any of the Defendants, nor any of the potential key witnesses, resides in New

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Jersey. Plaintiff does not allege that any of his claims arise out of conduct occurring in New
Jersey. And New Jersey law will not govern this dispute. Conversely, all of the Defendants, key
non-party witnesses, and potential documentary evidence are located in California. A substantial
part of the alleged operative events -- including the Film’s production -- occurred in California,
and California law is likely to govern the dispute.
In the event this Court declines to dismiss Plaintiff’s Complaint for lack of personal
jurisdiction or improper venue, or transfer this action to the Central District of California, it
should dismiss, in part, Plaintiff’s claims against Boal and Bigelow under Fed. R. Civ. P.
12(b)(6) because they fail to state a claim upon which relief can be granted. Plaintiff’s right of
publicity claim against Boal and Bigelow should be dismissed because it is premised upon the
theory that Boal and Bigelow used Plaintiff’s likeness for the Film’s content, which is an
expressive work protected by the First Amendment. Plaintiff’s defamation and false light claims
should be dismissed against Boal and Bigelow because the allegedly offensive statements
constitute non-actionable opinion and did not concern Plaintiff. Plaintiff’s breach of contract
claim against Bigelow should be dismissed because he has not alleged facts to suggest that she
was privy to the alleged contracts to which he was allegedly a third-party beneficiary. Plaintiff’s
intentional infliction of emotional distress claim against Boal and Bigelow should be dismissed
because Plaintiff has failed to allege that they engaged in “outrageous,” “extreme,” “atrocious,”
or “utterly intolerable” conduct. Plaintiff’s fraud claim against Bigelow should be dismissed
because the Complaint does not contain a single fact suggesting that she engaged in fraudulent
conduct. Finally, Plaintiff’s negligent misrepresentation claim against Boal and Bigelow should
be dismissed because Plaintiff has failed to allege facts suggesting that either individual owed
him a duty of care independent of their contractual duties.

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Dated: June 15, 2010

/s/ Stephen M. Orlofsky
BLANK ROME LLP
A Pennsylvania LLP
STEPHEN M. ORLOFSKY
New Jersey Resident Partner
ANDREW J. HUGHES
301 Carnegie Center
Princeton, NJ 08540
Phone: [phone]
Facsimile: [phone]
Attorneys for Defendants Mark Boal and
Kathryn Bigelow

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