8 F. Supp. 3d 743
W.D. Va.2014Background
- Plaintiff sues for IIED, fraud, tortious interference, and defamation; Defendant resides in Maryland; case removed to federal court in this district.
- Defendant seeks partial summary judgment; counterclaims include copyright infringement and tortious interference; counsel has changed.
- Plaintiff alleges harassment via nude photographs, spyware, and posting on multiple sites; model releases signed in 2010 and 2011.
- Court previously held venue proper in this court; case briefing includes motions to withdraw and motions to exclude expert testimony.
- Court denies summary judgment on the merits, dismisses counterclaims without prejudice for lack of subject-matter jurisdiction, and grants a bench trial; withdrawal motions denied without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Implied license defeats copyright counterclaim | Tharpe asserts implied license permits use; argues copyright ownership not violated | Kooer contends explicit license controls; disputes scope | Copyright counterclaim dismissed without prejudice |
| Tortious interference with MC2 contract/relationship | Tharpe contends interference with ongoing relationship caused damages | Tharpe failed to plead viable contract/intent; no improper act shown | Counterclaim for tortious interference dismissed without prejudice |
| Violating model releases supports IIED/defamation theories | Photographs and labeling harmed reputation and caused distress | Release purported to bar claims; not enforceable to shield intentional harms | IIED and defamation claims survive to proceed to trial; not resolved on summary judgment |
| Exculpatory releases enforceability and consequential claims | Exculpatory clauses do not bar intentional torts | Releases bar claims, including fraud | Exculpatory clauses unenforceable for fraud/intent; cancellation inapplicable; summary judgment denied on this point |
| Subject-matter jurisdiction over counterclaims | Court has jurisdiction; counterclaims arise from same nucleus of facts | Counterclaims lack subject-matter jurisdiction; need dismissal | Counterclaims dismissed without prejudice for lack of subject-matter jurisdiction |
Key Cases Cited
- Arbaugh v. Y & H Corp., 546 U.S. 500 (U.S. 2006) (court has independent duty to assess subject-matter jurisdiction)
- Hagans v. Lavine, 415 U.S. 528 (U.S. 1974) (merits of jurisdictional questions; broad standards)
- Atkins v. City of Chicago, 631 F.3d 823 (7th Cir. 2011) (plaintiff can plead himself out of court by alleging facts that foreclose relief)
- Carleton v. Winter, 901 A.2d 174 (D.C. 2006) (exculpatory clauses not valid to waive gross negligence/intentional harm)