March 28, 2013 4:23pm PT by Eriq Gardner
Hulk Hogan Wins Round in Sex Tape Lawsuit Against Gawker
In wrestling parlance, Hulk Hogan has just prevailed into pushing Gawker into a more favorable ring to fight a $100 million lawsuit over his leaked sex tape.
On Wednesday, a judge determined that Gawker's attempt to remove Hogan's lawsuit from Florida state court into a federal courtroom was improper. Hogan now has a chance to show how his privacy was invaded before a hometown judge.
To recap, Gawker posted a short excerpt in October of a a 30-minute Hulk Hogan sex tape as well as an essay by A.J. Daulerio that muses about how "we love to watch famous people have sex."
Hogan (born Terry Bollea) then sued, alleging a host of legal violations including invasion of his privacy, publication of private facts, misappropriation of his publicity rights and infliction of emotional distress. The former professional wrestler and reality TV star then added a copyright claim in an attempt to score an injunction, but a judge denied the effort because Hogan had failed to demonstrate an immediate and irreparable injury.
Bad judge, Hogan might have thought, willing to defer to the First Amendment so quickly. In response, Hogan, represented by attorney Charles Harder, decided it might be better to find a new judge.
The federal lawsuit was dropped, and a state lawsuit was filed -- this time joining Gawker as a defendant with Heather Clem, his partner in the video who is alleged to have had a role in leaking it.
Gawker then removed the lawsuit back to federal court and blasted Hogan's attorneys for a maneuver "so egregious as to constitute fraudulent joinder."
It turns out that Gawker executed the wrong move. On Wednesday, Judge James Whittemore agreed to grant Hogan's motion to remand the case back to state court. Here's the full ruling.
The judge rejects Gawker's arguments that Hogan can't bring a viable claim against Clem because the statute of limitations had expired on when they had sex on tape. "While the date of recording appears on the face of the First Amended Complaint, there are no allegations concerning the date of Heather Clem's alleged publication that would enable an evaluation of the statute of limitations at this stage," writes the judge.
And the judge sees enough commonality in Hogan's claims against Gawker and Clem that he feels the two were properly joined. Citing things like the sex video's chain of custody, the judge says, "The claims against Heather Clem and Gawker are 'logically related' and rest on the same set of operative facts- namely, the recording and publication of the video."
Gawker was also unsuccessful in arguing that federal law questions existed in the case that would make it more natural in a federal court. The website couldn't, for example, show that Hogan's privacy claims raised constitutional questions nor that Hogan's claims were preempted by federal copyright law. The judge determines that "even though Bollea seeks to regulate and control the distribution and display of the video," his privacy claims require "proof of separate elements," which makes them "qualitatively different from a copyright infringement action."
Therefore, the case goes back to a Florida state court. There, Gawker can continue to raise its defense that that the information it published was newsworthy and protected by the First Amendment. The website still stands a good chance of ultimately prevailing. But the ruling this week likely means that Gawker won't be scoring any quick pin in the battle and will be fighting on turf that's a whole lot less certain and comfortable.
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner