Sarver v. Chartier

Decision Date17 February 2016
Docket NumberNos. 11–56986,12–55429.,s. 11–56986
Citation813 F.3d 891
Parties Sgt. Jeffrey S. SARVER, Plaintiff–Appellant, v. Nicolas CHARTIER; Summit Entertainment, LLC ; Kathryn Bigelow; The Hurt Locker LLC ; Mark Boal; Greg Shapiro; Voltage Pictures, LLC ; Grosvenor Park Media, LP ; Kingsgate Films Inc. ; Donall McKusker; Tony Mark ; First Light Productions Inc., Defendants–Appellees, Playboy Enterprises, Inc., Defendant Sgt. Jeffrey S. Sarver, Plaintiff–Appellant, v. Nicolas Chartier; Summit Entertainment, LLC ; Kathryn Bigelow; The Hurt Locker LLC ; Mark Boal; Greg Shapiro; Voltage Pictures, LLC ; Grosvenor Park Media, LP ; Kingsgate Films Inc. ; Donall McKusker; Tony Mark ; First Light Productions Inc., Defendants–Appellees, and Playboy Enterprises, Inc., Defendant.
CourtU.S. Court of Appeals — Ninth Circuit

Michael R. Dezsi, Law Office of Michael R. Dezsi, PLLC, Detroit, MI, argued the cause and filed the briefs for the PlaintiffAppellant.

Jon–Jamison Hill, Eisner, Kahan & Gorry, Beverly Hills, CA; David Halberstadter, Katten Muchin Rosenman LLP, Los Angeles, CA; and Jeremiah T. Reynolds, Kinsella Weitzman Iser Kump & Aldisert LLP, Santa Monica, CA, each argued the cause and filed the brief for the DefendantsAppellees. With them on the brief were Timothy J. Gorry and Jackie M. Joseph, Eisner, Kahan & Gorry, Beverly Hills, CA; Rebecca F. Ganz, Katten Muchin Rosenman LLP, Los Angeles, CA; and Dale F. Kinsella, Kinsella Weitzman Iser Kump & Aldisert LLP, Santa Monica, CA.

Kelli L. Sager, Davis Wright Tremaine LLP, Los Angeles, CA, filed a brief on behalf of amici curiae Motion Picture Association of America, Inc. And Entertainment Merchants Association in support of the DefendantsAppellees. With her on the brief was Karen A. Henry, Davis Wright Tremaine LLP, Los Angeles, CA.




, Circuit Judge:

We must decide whether the district court properly applied California's Anti–Strategic Lawsuit Against Public Participation (anti-SLAPP) statute when it dismissed Army Sergeant Jeffrey Sarver's lawsuit relating to the Oscar-winning film The Hurt Locker.


Sergeant Jeffrey Sarver joined the United States Army in 1991. During parts of 2004 and 2005, he served as one of approximately 150 Explosive Ordnance Disposal (EOD) technicians in Iraq. Sarver led one of three teams in the 788th Ordnance Company whose principal duty was to identify, make safe, and dispose of improvised explosive devices.

In December 2004, Mark Boal, a journalist working for Playboy magazine, was embedded with the 788th out of Camp Victory in Baghdad, Iraq. Boal followed Sarver for a significant amount of time and took photographs and video of him while he was on and off duty. After Sarver returned to the United States, Boal conducted additional interviews with him in Wisconsin.

Boal wrote an article focused on Sarver's life and experiences in Iraq, which was published in the August/September 2005 issue of Playboy. A condensed version of that article was later published in Reader's Digest. The Playboy article contained two photographs of Sarver in addition to other personal information about him. Sarver alleges that he never consented to the use of his name and likeness in the Playboy article, that he objected to it after reviewing an advance copy, and that he attempted to have portions of the article removed before its publication in Reader's Digest.

Boal later wrote the screenplay for the film that became The Hurt Locker, which was released in June 2009 while Sarver was stationed at the Picatinny Arsenal in New Jersey. Sarver contends that Will James, the movie's main character, is based on his life and experiences, pointing to characteristics of James and events in the movie that allegedly mirror his life story. Sarver asserts that he did not consent to such use and that several scenes in the film falsely portray him in a way that has harmed his reputation.


In March 2010, Sarver filed suit in the District of New Jersey against Boal, Kathryn Bigelow, the film's director, Nicholas Chartier, its producer, and numerous corporate defendants (collectively the "defendants"), alleging causes of action for misappropriation of his likeness and right of publicity, false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and negligent misrepresentation. The defendants moved to dismiss Sarver's complaint pursuant to Federal Rules of Civil Procedure 12(b)(2)

and 12(b)(3), or, alternately, to transfer venue to the Central District of California pursuant to 28 U.S.C. § 1404(a). In response, the District of New Jersey transferred the case to the Central District of California.

On February 1, 2011, Chartier and some of the corporate defendants filed a motion to strike Sarver's complaint under Cal.Civ.Proc.Code § 425.16

, California's "anti-SLAPP" statute, which was "enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation." Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir.2001). Shortly thereafter, Boal and Bigelow filed a separate motion to strike on the same grounds.

Four days before hearing oral argument, the district court released a tentative order that would have allowed Sarver to proceed on his right of publicity claim but would have dismissed all other claims pursuant to the anti-SLAPP statute. However, in its final order, the district court reversed course, striking Sarver's complaint in its entirety. The district court concluded that California's anti-SLAPP statute applied because the defendants were engaged in the exercise of free speech in connection with a public issue, and also that "[e]ven assuming that [Sarver] and Will James share similar physical characteristics and idiosyncracies, a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie." The district court concluded that the film's use of Sarver's identity was transformative and dismissed all of Sarver's claims.

Sarver timely appealed.1


Before reaching the merits of Sarver's claims, we must determine whether the district court properly applied California law instead of New Jersey law and whether the defendants' anti-SLAPP motion was timely filed. Sarver contends that the district court erred on both counts, arguing that the district court should have applied New Jersey law and that the anti-SLAPP motion was not timely filed.


Our "choice of law inquiry has two levels." Schoenberg, 930 F.2d at 782

. "First, we must determine whose choice of law rules govern. Second, applying those rules, we determine whose law applies."2

Id. Typically, "a federal court sitting in diversity applies the conflict-of-law rules of the state in which it sits." Id. (internal quotation marks omitted). However, after a transfer under 28 U.S.C. § 1404, the choice-of-law rules of the transferor court apply. See Newton v. Thomason, 22 F.3d 1455, 1459 (9th Cir.1994). We therefore apply the choice-of-law rules of New Jersey.

The New Jersey Supreme Court has adopted the choice-of-law approach set forth in the Restatement (Second) of Conflict of Laws ("Second Restatement"). P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 962 A.2d 453, 460 (2008)

. Under that approach, we must first consider the specific provisions of the Second Restatement which set forth the presumptive rule for the claims at issue. See id. at 461. Once this presumptive rule is established, we must then consult the general tort principles outlined in section 145 of the Second Restatement, see id. at 461–63, before finally considering the two states' competing interests under the general principles outlined in section 6, id. at 455. We address each in turn.

Both sections 150 and 153 of the Second Restatement are relevant when determining the presumptive rule for Sarver's claims.3 Fortunately, "essentially the same choice-of-law rules are applicable to the two torts." Restatement (Second) of Conflicts § 152

cmt.d. Section 150 addresses multistate defamation that arises from, among other things, "exhibition of a motion picture" or "similar aggregate communication." Id. § 150(1). This section provides that rights and liabilities regarding defamation claims are "determined by the local law of the state which ... has the most significant relationship to the occurrence and the parties." Id. Section 153, which addresses multistate invasion of privacy, provides the same rule. Section 153 explains that the state with the most significant relationship "will usually be the state where the plaintiff was domiciled at the time if the matter complained of was published in that state." See also Hanley v. Trib. Publ'g Co., 527 F.2d 68, 70 (9th Cir.1975) ("In cases of defamation, [the Second Restatement factors] normally would call for application of the law of the plaintiff's domicil.").

Determining where Sarver was domiciled is not straightforward. Sarver contends that his domicile is New Jersey, and calls on us to enforce the laws of that state. However, Sarver has provided little support for his contention. Without citation to the record, Sarver asserts that he lived in New Jersey for approximately two years while stationed there, including at the time The Hurt Locker was released in theaters. Even if we credit Sarver's assertion, this statement alone is insufficient to establish the state as his legal domicile. See 13E Charles A. Wright et al., Federal Practice & Procedure § 3617 (3d ed. 2015)

("Service personnel are presumed not to acquire a new domicile when they are stationed in a place pursuant to orders; they retain the domicile they had at the time of entry into the service."). Sarver does not appear to have marshaled other indicia of domicile in New...

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