Lawsuit Against Sascha Baron Cohen: Procedural Objections and Costs Recovery, Exams of Civil procedure

Download Lawsuit Against Sascha Baron Cohen: Procedural Objections and Costs Recovery and more Exams Civil procedure in PDF only on Docsity! ESSAYS – The following facts apply to all THREE of the essay questions below. In addition, each question builds on the next. Sascha Baron Cohen is a comedian. His comedy involves elaborate set-ups in which Cohen dresses up as various “characters” and interacts with real people who do not realize that he is not who he purports to be. Cohen puts his unwitting victims in awkward situations, in which they often do and say embarrassing things. All of this is captured on film. One of Cohen’s characters is “Borat,” who is supposedly a Kazakh journalist in America to make a documentary that will be shown in his native Kazakhstan. In reality, Cohen/Borat is shooting footage of people making fools out of themselves for a movie that is set for major studio release in the United States. Cohen takes the raw footage of people doing stupid things back to his production studio in California, where it is edited to make the people look even more stupid. Cohen is a British citizen. Cohen’s production company, One America Productions (OAP), is incorporated in Delaware with its primary place of business in California. The Borat movie is the only work OAP has done inside the United States. ESSAY #1 – 70 minutes For one sketch, Cohen wishes to have Cohen/Borat interact with some southern fraternity guys. In character as Borat, Cohen goes to the Chi Psi fraternity house at the University of South Carolina, in Columbia, SC looking for volunteers. Cohen/Borat takes several frat guys to a local bar and buys drinks for them. He asks them to be in his “movie-film” and verbally assures them the film will never be shown in America. Then he asks them to sign a Release, allowing him to use their images on-screen. The final paragraph of the release says: Although the Participant agrees not to bring any claim in connection with the Film or the production, if any claim nevertheless is made, the Participant agrees that any such claim must be brought before, and adjudicated by, only a competent court located in the State of New York and County of New York under the laws of the State of New York. The guys all sign the release. In the meantime, OAP arranges for an RV to chauffeur Cohen/Borat and the guys around. Cohen/Borat “interviews” the guys in the RV. Several hours of film are shot, in which the guys make occasional comments that are demeaning to women and minorities. During this time, the RV travels on a circuitous route, occasionally passing into North Carolina. A few months later one of the fraternity guys, Al, comes across the “official Borat” internet site. The internet site is run by OAP out of their office in California. The movie hasn’t opened yet – the site is intended to “generate buzz.” The website has a “preview” link where viewers can watch clips from the movie. Al clicks on this link and up comes the scene shot in the RV. At the beginning of the scene, words at the bottom of the screen identify each of the guys by their full name, and further identify them as being from the University of South Carolina. The clip is basically an extended montage of Al and his friends making racist and sexist comments. Al is mortified. He decides to sue Cohen and OAP for $100,000 in damages for common law fraud and for being depicted in a false light. He also seeks to enjoin the movie from ever being released in theaters. Al was born and raised in South Carolina. However, North Carolina has a very favorable jury pool for plaintiffs, and one of Al’s parents’ friends is a big lawyer in Charlotte. So Al files his suit in Federal District Court for the Eastern District of North Carolina, based on the fact that (1) the internet site is accessible to people with internet access in North Carolina, and (2) the RV was periodically in the Eastern portion of North Carolina during the filming. The suit is brought in diversity. Service is properly made on all defendants. North Carolina’s long-arm statute reads as follows: Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts: (1) The transaction of any business within this state; (2) The making of any contract within this state; (3) The commission of a tortious act within this state; QUESTION: As the lawyer for the defendants, raise and argue all available Rule 12 procedural objections. State whether these arguments are likely to be successful. ESSAY #2 – 30 minutes. Assume all information from the previous question applies, except where indicated. In another scene from Cohen’s movie, shot in a Virginia suburb, Cohen/Borat is driving around in an ice-cream truck with a live bear in the back. He pulls up to a cul-de-sac and several small children run up to the truck. Then the bear sticks its head out of the window and roars at them. The children scream and flee in a panic. As a result of this incident, some of the children suffer from Post-Traumatic Stress Disorder, manifested through bed-wetting and fear of teddy bears. No release was obtained from the children because their images are not on-screen long enough to constitute “use”. Mary, the mother of one of the more traumatized children, decides to bring a tort claim on her