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James M. Tharpe, Jr v. Rudy K. Lawidjaja

October 26, 2012


The opinion of the court was delivered by: Judge Norman K. Moon


Seeking damages, injunctive relief, and cancellation and rescission of a purported contract, the instant complaint alleges intentional infliction of emotional distress, fraud in the inducement, tortious interference with contract, and defamation. The crux of the complaint is that Defendant, who resides in Maryland, reached out to harass Plaintiff, who resides in Lynchburg, Virginia, by conducting a campaign of tortious acts in a deliberate attempt to adversely affect Plaintiff's employment in Lynchburg. Defendant removed the case from the Circuit Court for the City of Lynchburg, and then filed a motion to dismiss for improper venue or, in the alternative, to transfer venue to the United States District Court for the District of Maryland or the District of Columbia. The matter was briefed and heard, and at the conclusion of argument I stated that I would deny the motion. This memorandum opinion further explains that venue appropriately lies in this court, and the propriety of retaining venue here.


Rule 12(b)(3) of the Federal Rules of Civil Procedure provides that a party may assert improper venue as a defense. As I will explain later in this memorandum opinion, Defendant's motion to dismiss for improper venue is unfounded, as venue in this instance is based on 28 U.S.C. § 1441(a), which provides that a civil action filed in state court may be removed "to the district court of the United States for the district and division embracing the place where such action is pending." However, Defendant moves in the alternative to transfer venue pursuant to 28 U.S.C. § 1404(a), which provides that, even when venue is proper, "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." Ordinarily, "[v]enue is based on the facts alleged in the well-pleaded complaint," Hoover Grp., Inc. v. Custom Metalcraft, Inc., 84 F.3d 1408, 1410 (Fed. Cir. 1996) (citations omitted), and, given that Defendant bears a "heavy burden in opposing the plaintiff's chosen forum," Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430 (2007), and the "strong presumption in favor of the plaintiff's choice of forum," Piper Aircraft Co. v. Reyno, 454 U.S. 235, 265-66 (1981), I will review the facts in the light most favorable to Plaintiff. See Innovative Communications Technologies, Inc. v. Vivox, Inc., Civil Action Nos. 2:12-cv-7, 2:12-cv-8, & 2:12-cv-9, 2012 WL 4738979, *4 (E.D. Va. October 3, 2012) ("[f]or the purposes of these motions [to transfer venue in three cases that were consolidated], the Court 'must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction.'" (quoting Combs v. Bakker, 886 F. 2d 673, 676 (4th Cir. 1989))); see also Aggarao v. MOL Ship Management Co., Ltd., 675 F.3d 355, 366 (4th Cir. 2012) ("[a] plaintiff is obliged . . . to make only a prima facie showing of proper venue," and "[i]n assessing whether there has been a prima facie venue showing, we view the facts in the light most favorable to plaintiff" (citations omitted)); Kelly v. Ammado Internet Services, Ltd., Civil Action No. 3:12-cv-291, 2012 WL 4829341, *1 (E.D. Va. October 10, 2012) ("the Court construes in Kelly's favor all allegations and materials offered to establish venue" (citing Aggarao, 675 F.3d at 366)).

Defendant is a photographer. Plaintiff posted photographs of himself on a Web-site used by aspiring models to promote themselves, and thereafter, in April or May 2010, Defendant contacted him.*fn1 In the course of the ensuing acquaintanceship between Plaintiff and Defendant, Plaintiff signed two broad, seemingly boilerplate photographic release agreements, neither of which contains an integration clause nor makes any reference to nudity. Assuming the releases are valid and enforceable, they do not contract for any specific services; rather, they purport to grant to the photographer the rights "to all photographs taken of [Plaintiff] on or between . . . Friday January 1st 2010 and Monday December 31st 2012," and "all photographs or videos taken of [Plaintiff's] person on or between . . . August 15th 2011 and December 31st 2015."*fn2

Defendant photographed Plaintiff a number of times (at least once in Lynchburg) and promoted Plaintiff as a model. Eventually, Plaintiff posed nude for Defendant. Plaintiff asserts that he agreed to do so only after Defendant assured Plaintiff that Defendant would not distribute photographs displaying Plaintiff's genitals or buttocks, and exhibits submitted in support of the complaint suggest that Defendant may have given Plaintiff this assurance.

Over time, relations between the parties deteriorated. There were angry scenes and tentative reconciliations between the parties. At least one of the angry scenes between the parties involved Defendant contacting Plaintiff's mother in Lynchburg. Plaintiff, who works as a soccer coach and was more committed to his employment as a coach than he was to pursuing modeling opportunities, apparently failed to attend some modeling appointments or commitments. More importantly, Plaintiff refused Defendant's request that Plaintiff leave his employment as a coach, relocate to the Washington, DC area, and serve as Defendant's "house model."

During the course of the parties' increasingly strained relationship, Plaintiff moved, in May 2010, to Tennessee to take a one-year coaching job. In May 2011, Plaintiff accepted his current coaching position, which began in July 2011, with Central Virginia United Soccer Club ("CVUS") in Lynchburg.

In August 2011, Plaintiff learned through his employer that an Internet search using Plaintiff's name had returned Web-sites displaying "inappropriate and embarrassing" photographs of which parties associated with CVUS "did not approve." Apparently there was a Web-site, maintained or controlled by Defendant, using Plaintiff's name. Defendant agreed to remove some of the pictures, "but left on the site a photograph which was still objectionable . . . ."

On August 19, 2011, Defendant sent an e-mail to Plaintiff and to Plaintiff's employer, stating his position regarding Plaintiff's request to take down the photographs.*fn3

On September 16, 2011, Defendant sent an e-mail to Plaintiff, stating that he had "officially withdrawn" his support for Plaintiff at a modeling agency. Defendant added, "[a]s far as I know you [sic] no longer on their website." Defendant concluded the e-mail by telling Plaintiff, "you are a great soccer coach, however, not much on modeling initiatives."

On September 17, 2011, Defendant sent Plaintiff an e-mail directing Plaintiff to stop using Defendant's contact list and to use his own contact resources. The complaint states that "Plaintiff responded to Defendant[,] explaining his reaction to Defendant black listing Plaintiff as a model." That day, the parties continued to exchange e-mails regarding Plaintiff's career choices, with Defendant condemning Plaintiff for refusing to make a greater effort to pursue modeling, yet also condemning Plaintiff's ability to be a model.

Later in September 2011, Defendant called Plaintiff to tell him that one of his clients had requested Plaintiff, and Defendant offered Plaintiff the job. The complaint states that "Plaintiff agreed, as he needed the money; Defendant again began taking photographs of Plaintiff."

According to the complaint, Defendant told Plaintiff that there was a publisher who wanted to do a calendar -- apparently of nudes -- "and that he would get 20% of the profits."*fn4 The complaint states that "Defendant said the theme was artistic/athletic; however, no genitals would be shown. Plaintiff agreed to the photo shoots with the understanding that no genitals would be shown." In a series of text messages between October 5 and October 13, 2011, Plaintiff asked Defendant to make sure that any photographs of his body below the waist be cropped so as not to show his genitals, but Defendant would give him no such assurances. Plaintiff informed Defendant that he would no longer pose fully nude.

In September and October 2011, Plaintiff grew suspicious that Defendant had placed spyware on Plaintiff's cell phone, allowing Defendant to view text messages and e-mails exchanged between Plaintiff and Plaintiff's girlfriend. As a result of these suspicions, Plaintiff turned down a modeling opportunity presented to him by Defendant, and Plaintiff "then called Defendant and left a message informing Defendant that Plaintiff believed he had installed spyware on his phone, that he could no longer trust Defendant, and that he was finished working for Defendant." The next day, Defendant sent a text message to "Plaintiff's mother and told her to tell Plaintiff never to contact him again." Plaintiff states that he "had no further contact with Defendant until he heard about a cease and desist order . . . and learned further that Defendant had posted one nude photograph [of Plaintiff] on [the] website [that used Plaintiff's name in the address] and other nude photographs [of Plaintiff] on Defendant's [own] website . . . ."

On December 8, 2011, Defendant wrote and sent a purported "cease and desist" letter to Plaintiff and to others at Plaintiff's place of employment.*fn5 Among other things, the letter airs a number of Defendant's personal complaints about Plaintiff, and includes two appendices cataloguing such complaints.*fn6

On December 17, 2011, Plaintiff sent an e-mail to Defendant upon learning that Defendant had posted (on Defendant's Web-site) full nude photographs of Plaintiff, and Defendant had tagged those photographs under the name of Plaintiff's employer, so that any Google search for CVUS would return the nude photographs of Plaintiff. Plaintiff asked Defendant to "please" remove the photographs for the sake of Plaintiff's future as a soccer coach. Plaintiff went to pains to wish Defendant well, and stated that all Plaintiff wished to do was to get on with his ...

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