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JS 44C/SDNY

REV. 4/2014
7
$f?TP!N| CIVIL COVER SHEET
neitheMBPlacelior suplsrneaihe
byItJkuleSjXfourt mrfown, i
PLAINTIFFS
Nautilus Insurance Company
ATTORNEYS (FIRM NAME, ADDRESS, ANDTELEPHONE NUMBER
Coughlin Duffy LLP
88 Pine Street, 28th Floor, New York, NY 10005
(212)483-0105
CAUSEOFACTION(CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)
(DONOTCITEJURISDICTIONAL STATUTES UNLESS DIVERSITY)
28 U.S.C. Section 1332
Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? NJZVesQjudge Previously Assigned
If yes, was thiscase Vol. Invol. Dismissed. No Yes If yes, give date &Case No.
The JS-44 civil cover sheet and the information contained herein neitheJeolaCelior supBemeIhe filing and se|
pleadings or other papers as required by law, except asprovided by MkuleSjJEourt mrfown, approved by Ibe
Judicial Conference oftheUnited States inSeptember 1974, is required for useof theClerK of Court for the purpwe^if
initiatingthe civil docket sheet.
DEFENDANTS
Gawker Media, LLC aka Gawker Media; Gawker Media Group, Inc. aka
Gawker Media; Gawker Entertainment, LLC, et al.
ATTORNEYS (IF KNOWN)
Unknown
IS THIS AN INTERNATIONAL ARBITRATIONCASE?
(PLACEAN[x] INONEBOXONLY)
No 0 Yes
NATURE OF SUIT
ACTIONS UNDER STATUTES
CONTRACT PERSONAL INJURY PERSONAL INJURY
[ ) 367 HEALTHCARE/
FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
1 1375 FALSE CLAIMS
( J400 STATE
WHO
INSURANCE [ ]310 AIRPLANE
PHARMACEUTICAL PERSONAL
[ )625 DRUG RELATED [ )422 APPEAL
I 1120 MARINE I ) 315 AIRPLANE PRODUCT
INJURY/PRODUCT LIABILITY
SEIZURE OF PROPERTY
28 USC 158 REAPPORTIONMENT
[ ]130 MILLER ACT LIABILITY ( ]365 PERSONAL INJURY
21 USC 881
[ J423 WITHDRAWAL [ ) 410 ANTITRUST
1)140 NEGOTIABLE
INSTRUMENT
| ]320 ASSAULT, LIBEL &
SLANDER
PRODUCT LIABILITY
[ 1368 ASBESTOS PERSONAL
[ ]690 OTHER
28 USC 157 [ 1430 BANKS & BANKING
[ J450 COMMERCE
I 1150 RECOVERY OF [ ] 330 FEDERAL INJURY PRODUCT I ]460 DEPORTATION
OVERPAYMENT & EMPLOYERS' LIABILITY PROPERTY RIGHTS [ ]470 RACKETEER INFLU
ENFORCEMENT LIABILITY
ENCED & CORRUPT
OF JUDGMENT ( J340 MARINE PERSONAL PROPERTY [ ]820 COPYRIGHTS ORGANIZATION ACT
I 1151
MEDICARE ACT ( ) 345 MARINE PRODUCT [ ] 830 PATENT (RICO)
I 1152 RECOVERY OF LIABILITY [ ) 370 OTHER FRAUD [ J840 TRADEMARK [ 1480 CONSUMER CREDIT
DEFAULTED [ J350 MOTORVEHICLE [ ]371 TRUTH INLENDING [ ]490 CABLE/SATELLITE TV
STUDENT LOANS I 1355 MOTOR VEHICLE
(EXCL VETERANS) PRODUCT LIABILITY SOCIAL SECURITY [ 1850 SECURITIES/
[ ]153 RECOVERY OF ( ]360 OTHER PERSONAL COMMODITIES/
OVERPAYMENT INJURY [ ) 380 OTHER PERSONAL LABOR [ )861 HIA (1395(f) EXCHANGE
OF VETERAN'S [ ]362 PERSONAL INJURY - PROPERTY DAMAGE | ) 862 BLACK LUNG(923)
BENEFITS
MED MALPRACTICE [ ) 385 PROPERTY DAMAGE [ J710 FAIR LABOR [ ]863 DIWC/DIWW (405(g))
| 1160 STOCKHOLDERS PRODUCT LIABILITY STANDARDS ACT ( 1864 SSID TITLE XVI
SUITS ( 1720 LABOR/MGMT [ 1865 RSI (405(g)) [ 1890 OTHER STATUTORY
I 1190
OTHER PRISONER PETITIONS RELATIONS ACTIONS
CONTRACT [ ) 463 ALIEN DETAINEE | )740 RAILWAY LABOR ACT 1 1891 AGRICULTURAL ACTS
I 1195
CONTRACT [ ) 510 MOTIONS TO
I ) 751 FAMILY MEDICAL
FEDERAL TAX SUrTS
PRODUCT ACTIONS UNDER STATUTES VACATE SENTENCE
LEAVE ACT (FMLA)
LIABILITY 28 USC 2255 ( 1870 TAXES (U.S. Plaintiffor [ ]893 ENVIRONMENTAL
[ 1196 FRANCHISE CIVIt RIGHTS ( ]530 HABEAS CORPUS [ ]790 OTHER LABOR Defendant) MATTERS
[ ]535 DEATH PENALTY LITIGATION [ 1871 IRS-THIRD PARTY I 1895 FREEDOMOF
[ ]440 OTHER CIVIL RIGHTS
(Non-Prisoner)
[ ) 540 MANDAMUS&OTHER [ ) 791 EMPL RET INC
SECURITY ACT
26 USC 7609 INFORMATION ACT
[ l 896 ARBITRATION
REAL PROPERTY
[ ] 899 ADMINISTRATIVE
I 1441 VOTING IMMIGRATION
PROCEDURE ACT/REVIEWOR
[1210 LAND
CONDEMNATION
[ ) 442 EMPLOYMENT
[ ) 443 HOUSING/
PRISONER CWIL RIGHTS
[ ]462 NATURALIZATION
APPEAL OF AGENCY DECISIO
| ]220 FORECLOSURE ACCOMMODATIONS [ J550 CIVIL RIGHTS APPLICATION [ 1950 CONSTITUTIONALITY 0
( ]230 RENT LEASE &
[ ) 445 AMERICANS WITH [ 1555 PRISON CONDITION | ]465 OTHER IMMIGRATION
STATE STATUTES
EJECTMENT DISABILITIES - 1 ) 560 CIVIL DETAINEE ACTIONS
I 1240 TORTS TO LAND
EMPLOYMENT CONDITIONS OF CONFINEMENT
1)245 TORT PRODUCT
LIABILITY
( ]446 AMERICANS WITH
DISABILITIES -OTHER
[ ]290 ALL OTHER
REAL PROPERTY
[ ] 448 EDUCATION
Checkif demanded incomplaint:
CHECK IFTHIS IS ACLASS ACTION
UNDER F.R.C.P. 23

DEMAND $_ OTHER
CheckYES only ifdemanded incomplaint
JURY DEMAND: YES EjNO
DO YOUXLAjM THIS CASE ISRELATED TOACIVIL CASE NOW PENDING IN S.D.N.Y.?
JUDGE DOCKET NUMBER
NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32)
(PLACEAN x INONEBOXONLY) ORIGIN
_1 Original 2 Removed from 3 Remanded D 4 Reinstated or 5 Transferred from 6 Multidistrict 7 Appeal to District
Proceeding state Court from RePened (Specify District) Litigation MaXJato'judge
a. iii|>tirprMtad cSwt** Judgment
|~~| b. Atleast on*
party is pros*.
(PLACEAN x IN ONEBOXONLY) BASIS OF JURISDICTION IF DIVERSITY, INDICATE
1 US PLAINTIFF 2 U.S. DEFENDANT 3 FEDERAL QUESTION _4 DIVERSITY CITIZENSHIP BELOW.
(U.S. NOT A PARTY)
CITIZENSHIPOF PRINCIPALPARTIES (FOR DIVERSITY CASES ONLY)
(Place an [X] inone box for Plaintiff and one box for Defendant)
PTF DEF PTFDEF PTF DEF
CITIZEN OF THIS STATE [11 M 1 CITIZEN ORSUBJECT OF A [ ]3 [ J3 INCORPORATED andPRINCIPAL PLACE M 5 [ ]5
FOREIGN COUNTRY OF BUSINESS INANOTHER STATE
CITIZEN OF ANOTHER STATE []2 [ ]2 INCORPORATED orPRINCIPAL PLACE [J4[14 FOREIGN NATION [16 []6
OF BUSINESS IN THIS STATE
PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)
Nautilus insurance Company
7233 E. Butherus Drive
Scottsdale, Arizona 85260
Maricopa County
DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)
See attached Rider.
DEFENDANT(S) ADDRESS UNKNOWN
REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVEBEENUNABLE,WITH REASONABLE DILIGENCE, TO ASCERTAIN
RES1B6NCE ADDRESSES OF THE FOLLOWING DEFENDANTS:
Check one: THIS ACTION SHOULD BE ASSIGNED TO: WHITE PLAINS _] MANHATTAN
(DONOT check either box if this a PRISONER PETITION/PRISONER CIVILRIGHTS
COMPLAINT.)
DATE 7/24/14 SIGNATURE OF ATTORNEY OF RECORD ^_ * ADMITTEDTOPRACTICE IN THIS DISTRICT
bA^/^-LC -^y. [)fl YES (DATE ADMITTED Mo.Sept. Yr.199f.__)
T7 / Attorney Bar Code #JK2008 RECEIPT* / /
Magistrate Judge is to be designated by the Clerk of the Court .Q judgeNETBURN
Magistrate Judge is so Designated.
RubyJ. Krajick, Clerkof Court by DeputyClerk, DATED .
UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)
RIDER TO CIVIL COVER SHEET
Defendant(s) Address(es) and County(ies)
Gawker Media, LLC a/k/a Gawker Media 210 Elizabeth Street
Suite 4
New York, NY 10012
NY County
Gawker Media Group, Inc. a/k/a Gawker
Media
210 Elizabeth Street
Suite 4
New York, NY 10012
NY County
Gawker Entertainment, LLC 210 Elizabeth Street
Suite 4
New York, NY 10012
NY County
Gawker Technology, LLC 210 Elizabeth Street
Suite 4
New York, NY 10012
NY County
Gawker Sales, LLC 210 Elizabeth Street
Suite 4
New York, NY 10012
NY County
Nick Denton 76 Crosby Street
Apt. 2B
New York, NY 10012-3857
New York County
A.J. Daulerio 156 Hope Street
Apt. 2A
Brooklyn, NY 11211-3450
Kings County
Kate Bennert 218 S 3rd Street
Brooklyn, NY 11211-5655
Kings County
Blogwire Hungary Szellemi Alkotast
Hasznosito KFT
Frankel Leo
U 106-108
Budapest 1023, Hungary
Terry Bollea 1040 Eldorado Avenue
Clearwater Beach, Florida 33765
Pinellas County
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
NAUTILUS INSURANCE COMPANY,
Plaintiff,
1- CV 5680
Civil Acti
v.
COMPLAINT FOR
DECLARATORY JUDGMENT
GAWKER MEDIA, LLC AKA GAWKER
MEDIA; GAWKER MEDIA GROUP, INC.,
AKA GAWKER MEDIA; GAWKER '
ENTERTAINMgNTTLLCT GAWKER
TECHNOLOGY, LLC; GAWKER SALES,
LLC; NICK DENTON; A.J. DAULERIO;
KATE BENNERT; BLOGWIRE HUNGARY
SZELLEMI ALKOTAST HASZNOSITO KFT
AKA GAWKER MEDIA; TERRY BOLLEA.
Defendants.
rLjajGasflS
CO
-^ o n
Plaintiff, Nautilusinsurance Company ("Nautilus"), by way of Complaint for Declaratory
Judgment against Defendants, Gawker Media, LLC a/k/a Gawker Media; Gawker Media Group,
Inc. a/k/a Gawker Media; Gawker Entertainment, LLC; Gawker Technology, LLC; Gawker
Sales, LLC; Nick Denton; A.J. Daulerio; Kate Bennert; Blogwire Hungary Szellemi Alkotast
Hasznosito KFT a/k/a Gawker Media (collectively the "Gawker Defendants"); and Terry Bollea
states as follows:
THE PARTIES AND JURISDICTION
1. Nautilus is an Arizona Corporation that is authorized to, and does engage in the
business of insurance in New York. Nautilus has its principal place of business at 7233 E.
Butherus Drive, Scottsdale, Arizona.
2. On information and belief, Gawker Media, LLC a/k/a Gawker Media is a
Delaware Limited Liability Company with a corporate address of 210 Elizabeth Street, 4th Floor,
New York, NY 10012.
3. On information and belief, Gawker Media Group, Inc. a/k/a Gawker Media is a
foreign corporation with a corporate address in the Cayman Islands.
4. On information and belief, Gawker Entertainment, LLC is a New York Limited
Liability Company with a corporate address of 210 Elizabeth Street, New York, NY 10012.
5. On information and belief, Gawker Sales, LLC is a New York Limited Liability
Company with a corporate address of 210 Elizabeth Street, New York, NY 10012.
6. On information and belief, Nick Denton is a resident of New York County, New
York.
7. On information and belief, A.J. Daulerio is a resident of Kings County, New
York.
8. On information and belief, Kate Bennert is a resident of New York County, New
York.
9. On information and belief, Blogwire Hungary Szellemi Alkotast Hasznosito KFT
a/k/a Gawker Media is a foreign company with a corporate address in Hungary
10. On information belief, Terry Bollea is a resident of Florida.
11. Nautilus does not make a claim against Terry Bollea and he is named solely as an
interested party pursuant to 28 U.S.C.S. 2201.
12. The amount in controversy exceeds the sum of Seventy-Five Thousand ($75,000),
not including interest.
13. This Court has jurisdiction pursuant to 28 U.S.C. 1332.
14. Venue is proper pursuant to 28 U.S.C. 1391 (b).
NATURE OF THE ACTION
15. This matter arises fromthe Gawker Defendants allegedlyposting in October 2012
a secretly taped video of Mr. Bollea engaged in sexual relations with Heather Clem and an
accompanying narrative on a website owned, operated, or maintained by the Gawker Defendants.
16. As a result of the posting, Mr. Bollea filed several actions against the Gawker
Defendants.
17. On December 28, 2012, Mr. Bollea filed a first amended complaint against the
Gawker Defendants in his Florida State court action.
18. In the first amended complaint Bollea asserts eight causes of action against the
Gawker Defendants: 1) invasion of privacy; 2) publication of private facts; 3) publication of
private facts; 4) invasion of privacy; 5) violation of Florida Common Law Right to Publicity; 6)
intentional infliction of emotional distress; 7) negligent infliction of emotional distress; 8)
violation of section 934.10 of the FloridaStatutes (the "Bollea Action"). Attached as Exhibit A
is a copy of the first amended complaint.
THE NAUTILUS POLICY
19. Nautilus issuedGawker Media LLC a commercial general liability policy bearing
policy number NN224201 with limits of liability of $1,000,000 per occurrence, and an effective
date of April 27, 2012 (the "Nautilus Policy").
20. The Nautilus Policy was cancelled at the request of Gawker Media LLC effective
October 22, 2012.
21. Per the Declarations page the policy premium for general liability coverage was
$3,210.00. The Business Description identified in the Common Policy Declarations and the
Commercial General Liability Coverage Part Declarations is "office".
22. The insuring agreement of Coverage A of the Nautilus Policy provides:
a. We will pay those sums that the insured becomes legally
obligated to pay as damages because of "bodily injury" or
"property damage" to which this insurance applies. We will have
the right and duty to defend the insured against any "suit" seeking
those damages even if the allegations of the "suit" are groundless,
false or fraudulent. However, we will have no duty to defend the
insured against any "suit" seeking damages for "bodily injury" or
"property damage" to which this insurance does not apply. We
may, at our discretion, investigate any "occurrence" and settle any
claim or "suit" that may result. But:
(1) The amount we will pay for damages is limited as
described in Section III -Limits Of Insurance; and
(2) Our right and duty to defend end when we have used up
the applicable limit of insurance in the payment of
judgments or settlements under Coverages A or B or
medical expenses under Coverage C.
No other obligation or liability to pay sums or perform acts or
services is covered unless explicitly provided for under
Supplementary Payments - Coverages A and B.
b. This insurance applies to "bodily injury" and "property damage"
only if:
(1) The "bodily injury" or "property damage" is caused by
an "occurrence" that takes place in the "coverage territory";
(2) The "bodily injury" or "property damage" occurs during
the policy period;.. .
23. The Nautilus Policy contains the following definitions:
3. "Bodily injury" means bodily injury, sickness or disease
sustained by a person, including death resulting from any of these
at any time.
13. "Occurrence" means an accident, including continuous or
repeated exposure to substantially the same general harmful
conditions.
14. "Personal and advertising injury" means injury, including
consequential "bodily injury", arising out of one or more of the
following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or
invasion of the right of private occupancy of a room,
welling or premises that a person occupies, committed by
or on behalf of its owner, landlord or lessor;
d. Oral or written publication, in any manner, of material
that slanders or libels a person or organization or
disparages a person's or organization's goods, products or
services;
e. Oral or written publication, in any manner, of material
that violates a person's right of privacy;
f. The use of another's advertising idea in your
"advertisement"; or
g. Infringing upon another's copyright, trade dress or slogan
in your "advertisement"."
24. The Nautilus Policy includes the following exclusions:
a. Expected Or Intended Injury
"Bodily injury" or "property damage" expected or intended from
the standpoint of the insured. This exclusion does not apply to
"bodily injury" resulting from the use of reasonable force to protect
persons or property.
o. Personal And Advertising Injury
"Bodily injury" arising out of "personal and advertising injury".
25. The Nautilus Policy also provides:
EXCLUSION - PERSONAL AND ADVERTISING INJURY
This endorsement modifies insurance provided under the
following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
COVERAGE B (Section I) does not apply and none of the references to it in the
Coverage Part apply.
26. The Nautilus Policy includes a "LIMITATION OF COVERAGE TO
DESIGNATED OPERATIONS" endorsement that provides:
This endorsement modifies insurance provided under the
following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
A. The following exclusion is added to 2. Exclusions of
Section I - Coverage A - Bodily Injury And Property
Damage Liability, Coverage B - Personal And Advertising
Injury Liability and Coverage C - Medical Payments:
This insurance does not apply to "bodily injury", "property
damage", "personal and advertising injury" or medical payments
arising out of, or in any way related to, operations performed by
any insured or any person or organization for whom any insured
may be legally or contractually responsible, unless such operations
are "designated operations".
B. For the purpose of this endorsement, the following
definition is added to the Definitions section:
"Designated operations" means only those operations
performed by any insured that are described on the
General Liability Coverage Part Declarations, the
endorsements, or supplements of this insurance.
27. When applying for the Nautilus Policy, the Gawker Defendants represented that
they were seeking the Nautilus Policy to cover "office liability exposure and occasional (sic)
they need event coverage." Further, it was represented that the Gawker Defendants had a
separate E&O media liability policy.
CLAIM HANDLING
28. On or about July 3, 2013, the Gawker Defendants tendered the Bollea Action to
Nautilus.
29. On July 18,2013, Nautilus issued a disclaimer letter to the Gawker Defendants.
30. Nautilus disclaimed coverage for the Bollea Action on the ground that, among
other reasons, coverage under the Nautilus Policy was not triggered and even if it was, various
exclusions applied to preclude coverage.
31. On August 1, 2013, the Gawker Defendants challenged the disclaimer letter
because, according to the Gawker Defendants, the policy they sought from Nautilus to cover
"office liability exposure" applied to the claims asserted by Mr. Bollea.
32. On September 12, 2013, Nautilus issued a reservation of rights letter to the
Gawker Defendants and advised that Nautilus "will agree to contribute to the defense of [the
Gawker Defendants]" in the Bollea Action.
33. Nautilus stated that it "is reserving the right to litigate all coverage defenses and
withdraw from the defense of the Gawker Defendants if a court determines that Nautilus has no
duty to defend with respect to the claims asserted by Terry Bollea."
34. Nautilus also stated that "Nautilus Insurance Company reserves the right to
disclaim coverage and to bring an action in an appropriate state or federal court of competent
jurisdiction and venue in order to limit, obtain a declaration, or interplead, to enforce the
limitations mentioned herein and declare the obligations and responsibilities of the parties hereto
under the contract of insurance. Nautilus Insurance Company, by this letter, by contributing to
the defense of the Gawker Defendants, and by its continued investigation, does not waive nor
invalidate any of the other terms, conditions or exclusions of the policy."
AS AND FOR A FIRST CAUSE OF ACTION
(Declaratory Judgment)
35. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 through 34
of the Complaint as if set forth at length herein.
36. The insuring agreement of Coverage A of the Nautilus Policy is not triggered by
the claims asserted in the Bollea Action because those claims do not seek recovery for "bodily
injury" or "property damage" "caused by an 'occurrence,'" within the meaning of the Nautilus
Policy.
37. Nautilus therefore has no duty to defend or indemnify the Gawker Defendants
under the Nautilus Policy for the claims asserted in the Bollea Action.
38. Nautilus is entitled to a declaration that the Nautilus Policy does not provide
coverage for the claims asserted in the Bollea Action because the insuring agreement in
Coverage A of the Nautilus Policy is not triggered by such claims.
AS AND FOR A SECOND CAUSE OF ACTION
(Declaratory Judgment)
39. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 through 38
of the Complaint as if set forth at length herein.
40. The insuring agreement of Coverage A of the Nautilus Policy is not triggered to
the extent any "bodily injury" or "property damage" alleged did not occur during the Nautilus
Policy period.
41. Nautilus therefore has no duty to defend or indemnify the Gawker Defendants
under the Nautilus Policy for claims in the Bollea Action seeking recovery for any such "bodily
injury" or "property damage".
42. Nautilus is entitled to a declaration that the Nautilus Policy does not provide
coverage for the claims asserted in the Bollea Action to the extent they seek recovery for "bodily
injury" or "property damage" that occurred outside the Nautilus Policy period because the
insuring agreement in Coverage A of the Nautilus Policy is not triggered by such claims.
AS AND FOR A THIRD CAUSE OF ACTION
(Declaratory Judgment)
43. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 through 42
of the Complaint as if set forth at length herein.
44. To the extent the Bollea Action seeks recovery for "bodily injury", such injury
was expected or intended by the Gawker Defendants and therefore, is not covered under
CoverageA by virtue of exclusion a. Expected Or Intended Injury.
45. To the extent the Bollea Action seeks recovery for "bodily injury", such injury
arises out of "personal and advertising injury" within the meaning of the Nautilus Policy and
therefore is not covered under the Nautilus Policy by virtue of exclusion o. Personal And
Advertising Injury, and/or the Endorsement entitled "Exclusion - Personal and Advertising
Injury".
46. The claims asserted in the Bollea Action fall entirely within the scope of one or
more of the above exclusions.
47. Nautilus therefore has no duty to defend or indemnify the Gawker Defendants
under the Nautilus Policy for the claims asserted in the Bollea Action.
48. Nautilus is entitled to a declaration that the Nautilus Policy does not provide
coverage for the claims asserted in the BolleaAction because coverage for them is precluded by
virtue of one or more policy exclusions.
AS AND FOR A FOURTH CAUSE OF ACTION
(Declaratory Judgment)
49. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 through 48
of the Complaint as if set forth at length herein.
50. The "Limitation of Coverage" endorsement contained in the Nautilus Policy
limits coverage to the Gawker Defendants' liability for operating their office at 210 Elizabeth
Street, New York, NY.
51. The Gawker Defendants specifically sought the Nautilus Policy only to cover
their "office liability exposure" at the Elizabeth Street location and, occasionally, event
exposure.
52. The claims asserted against the Gawker Defendants in the Bollea Action do not
seek to impose liability on them related to operation of their Elizabeth Street office and therefore,
are not covered under the Nautilus Policy.
53. Nautilus therefore has no duty to defend or indemnify the Gawker Defendants
under the Nautilus Policy for the claims asserted in the Bollea Action.
54. Nautilus is entitled to a declaration that the Nautilus Policy does not provide
coverage for the claims asserted in the Bollea Action because such claims fall outside the scope
of the limited coverage provided under the Nautilus Policy.
10
AS AND FOR AN FIFTH CAUSE OF ACTION
(Reimbursement of Defense Costs)
55. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 through 54
of the Complaint as if set forth at length herein.
56. Nautilus has been defending the Gawker Defendants in the Bollea Action since
September 2013 and has been incurring attorneys' fees and costs related to such defense since
that time.
57. The Nautilus Policy provides that Nautilus "will have no duty to defend the
insured against any 'suit' seeking damages for 'bodily injury' or 'property damage' to which this
insurance does not apply."
58. For the foregoing reasons the Bollea Action seeks damages for "bodily injury" or
"property damage" to which the Nautilus Policy does not apply.
59. Nautilus therefore has and had no duty to defend the Gawker Defendants in the
Bollea Action.
60. Because there is no coverage for the claims asserted in the Bollea Action under
the Nautilus Policy the Gawker Defendants are responsible for their defense in the Bollea
Action.
61. The Gawker Defendants have been unjustly enriched to the extent of the defense
costs paid by Nautilus for the defense of the Bollea Action.
62. Nautilus therefore is entitled to recover all defense costs it has paid for the
defense of the Bollea Action from the Gawker Defendants.
11
WHEREFORE, Nautilus respectfully requests that the Court enter judgment in its favor
as follows:
A. On the First Cause of Action, declaring that Nautilus has no duty to defend
or indemnify the Gawker Defendants under the Nautilus Policy for the
claims asserted in the Bollea Action because the insuring agreement in
Coverage A of the Nautilus Policy is not triggered;
B. On the Second Cause of Action, declaring that Nautilus has no duty to
defend or indemnify the Gawker Defendants under the Nautilus Policy for
the claims asserted in the Bollea Action to the extent that such claims seek
recovery for "bodily injury" or "property damage" that did not occur
during the Nautilus Policy period;
C. On the Third Cause of Action, declaring that Nautilus has no duty to
defend or indemnify the Gawker Defendants under the Nautilus Policy for
the claims asserted in the Bollea Action because coverage for them under
the Nautilus Policy is precluded by one or more policy exclusions;
D. On the Fourth Cause of Action, a declaration that Nautilus has no duty to
defend or indemnify the Gawker Defendants under the Nautilus Policy for
the claims asserted in the Bollea Action because such claims fall outside
the scope of the limited coverage provided by the Nautilus Policy;
D. On the Fifth Cause of Action, awarding money damages in favor of
Nautilus and against the Gawker Defendants for reimbursement of all
attorneys' fees, costs and expenses incurred and to be incurred by Nautilus
in defending the Bollea Action;
12
E. Awarding Nautilus its attorneys' fees, costs, and expenses; and
F. Awarding such other and further relief as the Court deems just and proper.
Dated: New York, New York
July 24, 2014
COUGHLIN DUFFY LLP
13
Justin N. Kinney
fall Street Plaza
Pine Street, 28th Floor
New York, New York 10005
(212)483-0105
Attorneysfor Plaintiff',
Nautilus Insurance Company
7
Case 8:13-cv-00001-RAL-AEP Document 2 Filed 01/02/13 Page 1 of 27 PagelD 40
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FORPINELLAS COUNTY, FLORIDA
TERRYGENEBOLLEAprofessionally
known as HULK HOGAN,
Plaintiff,
HEATHER CLEM; GAWKER MEDIA, IXC
aka GAWKERMEDIA; GAWKERMEDIA
GROUP, INC. aka GAWKER MEDIA;
GAWKER TsNTERTAINMENT, LLC;
GAWKER TECHNOLOGY, LLC; GAWKER
SALES, LLC; NICK DENTON; AJ.
DAULERIO; KATE BENNERT, and
BLOGWIRE HUNGARY SZELLEMI
ALKOTAST HASZNOSITO KFT aka
GAWKERMEDIA,
Defendants.
Case No. 12012447-CI-011
CIVIL COURT RECORDS DEPARTMENT
OEC 282012
-SS!<C__CT|YCOyRT
FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff Terry Gene Bollea("Plaintifif" or "Mr. Bollea"), professionally known as"Hulk
Hogan," suesdefendants Heather ClemakaHeather Cole("Clem"), Gawker Media, LLCaka
Gawker Media, Gawker Media Group, Inc. akaGawker Media, Gawker Entertainment, LLC,
Gawker Technology, LLC, Gawker Sales, LLC, NickDenton, AJ. Daulerio, Kate Bennert,
Blogwire Hungary Szellemi Alkotast Hasznosito KFT akaGawker Media (collectively, the
"Gawker Defendants") (collectively with Clem, "Defendants"), and alleges as follows:
NATURE OF THIS ACTION
1. Defendants have engaged in outrageous, irresponsible anddespicable conduct that
should be punished to the maximum extent under the law. Defendant Clem caused Mr. Bollea to
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be secretlyvideotapedin or about 2006, without his knowledge or consent, while he was
engaged in privateconsensual sexual relations withher in a privatebedroom. Onor about
October4,2012, the Gawker Defendantsposted to the Internet a one-minute and forty-second
"highlight reel" of the secretly-taped videoand audiofootage depicting Mr. Bolleanakedand
engaged in privateconsensual sexualrelations with Clemin a privatebedroom(the"Video").
The GawkerDefendantsalso posted, with the Video, a graphicnarrativethat describesthe sexual
activityin the Video in lurid detail (the "Narrative"). The Gawker Defendants posted the Video
and Narrative at their website www.Gawker.com(the "Gawker Site"). The Gawker Defendants
postedthe Videoand Narrative for the publicto view, for the purposeofobtainingtremendous
financial benefit for themselves, including without limitation (a) the sale of advertisementeat the
Gawker Site to viewers ofthe webpage with a link to the Video and Narrative, and (b) attracting
newviewers to the Gawker Site for the long-termfinancial benefit ofthe Gawker Defendants
and their numerous affiliated websites, and additional revenues from the substantial new viewers
broughtto the Gawker Site and its affiliatedwebsites by the Videoand Narrative.
2. Mr. Bolleahad no knowledge that the intimateactivitydepicted in the Video was
beingrecorded. To the contrary, Mr. Bollea believedthat such activitywas completelyprivate,
and he had a reasonableexpectationofhis privacy in the private bedroom, andhe reasonably
believedthat his privacy was safe and protected at all relevant times.
3. BothClem's secretrecording of Mr. Bolleanakedand engaged, in private
consensual sexual activity, andthe Gawker Defendants' postingofthe VideoandNarrativeat
the Gawker Site, constitutes a shameful and outrageous invasionofMr. Bollea's right of privacy
by a group ofloathsome Defendants who haveno regardfor humandignityand care only about
maximizing their revenues and profits at the expense ofall others.
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4. Mr. Bollea is informed andbelieves thattheactivities bybothClem, andthe
Gawker Defendants, constitutes acriminal violation ofFlorida's Video Voyeurismlawcodified
at Section 810.145 ofthe Florida Statutes.
5. This lawsuit wasnecessitated by Defendants' blatant violations of Mr. Bollea's
right ofprivacy and other rights as discussed herein. Clemviolated Mr. Bollea's rights by
participating inthe secret recording ofMr. Bollea naked and engaged inprivate sexual activity in
aprivate bedroom. The Gawker Defendants violated Mr. Bollea's rights by their wrongful
disclosure ofthe private acts depicted inthe Video; their unauthorized commercial exploitation
of Plaintiffs name, image, identity andpersona; theirrefusal to remove the Video andNarrative
when Plaintiffrepeatedly requested anddemanded its removal from theGawker Site; andother
calculated wrongful and tortious conduct as described herein.
6. Defendants' malicious conduct violates Plaintiffs constitutional and common law
privacy, rights and publicity rights, and exceeds all bounds ofhuman decency. Defendants' gross
and egregious intrusion into Plaintiffs privacy must bestopped, andmust bepunished tothe
maximum extent ofthe law.
JURISDICTION
7. This Court has jurisdiction because Plaintiffseeks reliefinanamount greater than
$15,000, exclusive of interest, costs andattorneys' fees.
8. This Court has personal jurisdiction over the Defendants as follows:
a. Defendants committed tortious acts within theState of Florida thereby
satisfying Florida's long-arm statute, section48.193, FloridaStatutes;
b. Defendants have committed intentional torts expressly aimed at Plaintiff,
the effects ofwhich were suffered in this circuit. Defendants' intentional conduct was calculated
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to causeinjuryto Plaintiff in Florida. Basedon their intentionaltorts, Defendantsshouldhave
reasonably anticipated being haledinto this Court and due process is satisfied.
9. Venueis proper inthis Court pursuant to section47.011, Florida Statutes,
because, among other things, the claims at issue accrued within this circuit
PARTIES
10. Plaintiff Terry Gene Bollea is aresident and citizen of the State ofFlorida, and
resident of Pinellas County.
11. Defendant Heather Clem aka Heather Cole is a resident ofthe State ofFlorida,
believedto reside in Hillsborough County.
12. At all relevant times, defendant Gawker Media, LLC aka Gawker Media, was and
is a limited liabilitycompany organized andoperating under the laws of the StateofDelaware,
with its principal place of business in New York.
13. At all relevant times, defendant Gawker Media Group, Inc. aka Gawker Media,
was and is a Cayman Islands corporation.
14. At all relevant times, defendant Gawker Entertainment, LLC, was and is a New
York limited liability company. Thus, defendant Gawker Entertainment, LLC was and is a
citizen ofNew York.
15. At all relevant times, defendant Gawker Technology, LLC was an is a New York
limitedliability company.
16. At all relevant times, defendant Gawker Sales, LLC was an is a New York limited
liability company.
17. Plaintiffis informed and believes and based thereon alleges that defendants
Gawker Media, LLC, Gawker F^tertainment, LLC, Gawker Technology, LLC, and Gawker
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Sales, LLC were andareall under thecontrol of defendant Gawker Media Group, Inc. based in
the Cayman Islands.
18. At all relevanttimes, defendant Blogwire Hungary Szellemi AlkotastHasznosito
KFTakaGawker Media("Blogwire Hungary") was andis a Hungarian off-shore company, and
owns the Internet domain name GAWKER.COM.
19. Defendants Gawker Media, LLC, Gawker Entertainment, LLC, Gawker
Technology, LLC, Gawker Sales, LLC, Gawker Media Group, Inc., and Blogwire Hungary are
collectively referred to herein as "Gawker Media".
20. Gawker Mediaowns, operates, controls and publishesseveral Internet websites,
includingthe Gawker Site, which disseminateinformation worldwide via the Internet
21. At all relevant times, defendant Nick Denton ("Denton") was and is a citizen of
Hungaryand the United Kingdom, and is a resident and domiciliary ofthe State ofNew York.
Defendant Dentonis the founder of Gawker Media and currentlyowns all of, or a controllingor
substantial interest in, Gawker Media,
22. At all relevant times, defendant AJ. Daulerio ("Daulerio") wasandis a citizen,
resident and domiciliary ofthe State ofNew York. Plaintiff is informed and believes and based
thereon alleges that defendant Daulerio is the Editor in Chief of the Gawker Site and Gawker
Media.
23. Plaintiff is informedand believes that defendant Kate Bennert ("Bennert")is a
citizen,resident and domiciliaryofthe State ofNew Yorkand is employedby Gawker Media.
24. Plaintiff is informedand believesand basedthereon alleges that the Gawker
Defendants, and each ofthem, wereand are the agents, licensees, employees, partners,joint-
venturers, co-conspirators, owners, principals, and employers ofthe remaining Gawker
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Defendants, and eachof themare, and at all times hereinmentionedwere, actingwithinthe
course and scopeof that agency, license, partnership, employment, conspiracy, ownership, or
joint venture. Plaintiff further is informedand believesand basedthereon allegesthat the acts
andconduct hereinallegedofeachofthe Gawker Defendants wereknownto, authorized by,
and/or ratified by the other Gawker Defendants, and each ofthem.
FACTS GIVING RISE TO THE CLAIMS
25. Plaintiff is a professional wrestler, motionpicture actor, and televisionpersonality
who has enjoyed mainstreampopularity as die character "Hulk Hogan." Plaintiff is a twelve-
time worldwrestlingchampion.
26. In or about 2006, Mr. Bollea engaged in private sexual relations with defendant
Heather Clem, in Clem's private bedroom. Unbeknownst to Mr. Bollea, and without his
knowledge or consent, Mr. Bollea was filmed naked and engaged in private sexual relations with
Clem. Plaintiff is informedandbelieves and on that basis allegesthat Clemwas involvedin
filmingthe private consensual sexual encounter between Mr. Bollea and Clem. Mr. Bollea
understood, believed and expected that the sexual activities in which he and Clem engaged in her
private bedroom were completelyprivate and would not be viewed by any other persons. Had
Mr. Bollea known that his private sexual activities were being secretly filmed, Mr. Bollea would
not have engaged in any such activities.
27. Plaintiff is informedand believes and thereonalleges that the GawkerDefendants,
based onthe actions ofClemand others, obtaineda copyof the secretly-filmedrecording
depicting Mr. Bollea naked and engaged in sexual relations with Clem. The recording was
editedby the Gawker Defendantsinto a one-minuteand forty-second "highlight reel" depicting
Mr. Bolleafully naked;showinghis sexpartner, Clem,performing oral sex on him; and showing
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himengaged in sexual intercourse withher. The footage wasnot blocked, blurredor obscuredin
any wayby the GawkerDefendants, who createdthe edited"highlight reel" and also added
English subtitles to the Videoto ensurethat viewersdidnot miss a wordoftheir private
encounter. The Gawker Defendants alsoprepared theNarrative describing the sexual encounter
in lurid detail.
28. On or about October4,2012, the Gawker Defendantspublishedat the Gawker
Sitethe Videodepicting Plaintiffhavingprivateconsensual sexual relations withan anonymous
womanin a privatebedroom, andthe Narrativegraphicallydescribingthe actionstakingplace in
the Videoin lurid detail. DefendantBennert,with die help or under the directionof defendants
Dentonand Daulerio, edited the secretly-filmedrecording into the Video without Plaintiffs
knowledgeor consent The Narrative was written and edited by defendants Daulerio, Denton
and Bennert. Plaintiffmade numerous and repeated demands to the Gawker Defendants,
mcluding directly to defendant Denton, to remove the Video from the Gawker Site. However,
the Gawker Defendants failed and refused to do so.
29. At no time prior to, during, or after the private consensual sexual encounter
between Mr. Bolleaand ClemdidMr. Bolleaever authorizeor consentto anypersonor entity
recording the private, mtimateacts depictedin the Video, or the storage ofthe Video, or the
editing of the Video, the dissemination, publishing or exploitation of the Videoin any way or
manner whatsoever, or the creation ofthe Narrative or other work based on the Video. On the
contrary, Plaintifffinds the secretrecording ofhis privatesexual activityby Ms. Clemand the
publishing of the VideoandNarrative by the GawkerDefendants to be outrageous and
egregious. TheVideo andNarrative have neverbeenauthorized byPlaintifffor anypurpose
whatsoever, including any formof disclosure to the public whatsoever.
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30. Numerous mediaoutletsandwebsites pickedup on the VideoandNarrative
postedat the Gawker Site, andposted links to it, thusexposinghundreds ofmillionsof peopleto
the Video and Narrative. As a natural and foreseeable consequence, massive numbers of
individuals were drawn to the Gawker Site, for which the Gawker Defendants have reaped
tremendousrevenues and profits, and have been unjustly enriched therefrom, based on both the
short term web traffic of millions ofpeople who have viewed the Video and Narrative and
advertisements displayedthereat, andthe longterm increasein viewershipto the Gawker Site
and the Gawker Defendants' other affiliated sites, and the revenues and profits associated
therewithfor a prolongedperiodoftime. Suchtremendousbenefits are a direct result ofthe
tremendous fame and goodwill of Plaintiff.
31. As a natural and foreseeable consequence of Defendants' actions, Plaintiffhas
suffered, and continues to suffer, tremendous emotional distress. His life was "turned upside
down" by the unlawful actions ofthe Defendants, includingthe continued display ofthe Video
and Narrative at the Gawker Site, and Plaintiffcontinues to suffer from substantial emotional
distress, on a daily basis, as a result In particular, Plaintiffhas suffered, and continues to suffer,
substantial embarrassment, humiliation and hurt feelings as a result. Moreover, Plaintiffs
goodwill, commercial value, and brand have been substantially harmed as a result as well.
32. Plaintiff has devoteda tremendous amount ofhis time and effort to developing his
career as a professional championwrestler, motion picture actor, and television personality, and
to developinghis universal goodwill, reputation and brand. Such efforts have created
considerable commercial value in his name, image, identity and persona.
33. The commercialvalue ofPlaintiffs name, image, identityand personahas been,
and continuesto be, substantially diminished by Defendants' actions, including the secret taping
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of Plaintiffnaked andhaving sex;the unauthorized transmission of that recording to theGawker
Defendants; andtheunauthorized posting, publishing, distribution anddissemination of the
Video andNarrative, whichis perceived unfavorably bythe publicandbythe negative portrayal
of Plaintiff in the Video and Narrative to the general public.
34. Defendants' conduct manifests a depraved disregard for Plaintiffs privacyrights
and an unauthorized commercial exploitation of his publicity rights.
35. Plaintiffis informedand believesand alleges thereonthat unless enjoinedand
restrained, the Gawker Defendantswill continue to post, publish, distribute, disseminate and
exploitthe Video andNarrative, despitePlaintiffs numerous and repeated demands that the
Gawker Defendants cease and desist. Such infringement and violation ofPlaintiffs rights will
continue to cause Plaintiff severe emotional distress and damage, for which there is no adequate
remedyat law, if the Video and/or Narrativecontinueto be posted, published, distributed,
disseminatedand exploited by the Gawker Defendants. Such conduct and activity has caused
and will continue to cause Plaintiffto suffer irreparable harm for which there is no adequate
remedy at law.
36. All conditions precedent to the bringingand maintenance ofthis action and the
grantingofthe relief requested have been performed, have occurred, or have been waived.
FIRST CAUSE OF ACTION
(Invasion of Privacy by Intrusion Upon Seclusion Against Defendant Heather Clem)
37. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation
contained in Paragraphs 1 through 36, inclusive, as though fully set forth herein.
38. Clem, without Plaintiffs knowledge or consent, has grossly invaded Plaintiffs
protectedrights of privacy as recognized under the United States Constitution, Florida
Constitution, and the commonlaw, by filming Plaintiffin or about 2006engagedin private
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consensual intimate sexual relations withMs. Clemin a private bedroom. Plaintiffrecently
learned of theexistence ofthissecretiy-filmed video, and brought thislawsuit promptly
thereafter.
39. Clemfurther violatedPlaintiffs rights of privacy bydisclosing thesecretly-
filmed video tothird parties, which then resulted inexcerpts of thesecretly-filmed video being
posted on the Gawker Site.
40. Thevideotaping ofPlaintiffengaging in consensual sexual relations in private
quarters was not carried out for reasonable or legitimate purposes. Plaintiffhad a reasonable
expectation of privacy at all relevant times, anddidnot knowabout, nor consent to, thetaping of
the activity depicted in the secretly-filmedvideo.
41. Theunauthorized taking anddissemination of the secretiy-filmed video is highly
offensive and objectionable to Plaintiffandto any reasonable personofordinary sensibilities,
and is not of legitimate public concern.
42. Clemknewor shouldhaveknownthat the secretly-filmed videocontained private
andconfidential information, that Plaintiffhad a reasonable expectation ofprivacy, that her
conductwould causeprivate andpersonal things about Plaintiff to be revealedwhich Clemhad
no right to disseminate or disclose, and that the publication of theseprivatefacts constitutea
clear and substantialviolationofPlaintiffs right ofprivacy.
43. Clem violatedPlaintiffs fundamental privacyrights by the conduct alleged
herein, including the outrageous intrusion into Plaintiffs privacyand the publication, and
dissemination ofthe secretly-filmed videoin an unprivileged manner in conscious disregardof
Plaintiffs rights.
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44. Plaintiffis informedand believesand thereonalleges that Clemacted with actual
maliceandreckless disregardof Plaintiffs right ofprivacy.
45. Unless and until enjoined and restrained by order ofthis Court, Clem's continued
acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated
by monetary damages. By reason ofthe foregoing, Plaintiff is entitled to preliminary and
permanent injunctive relief enjoining the distribution, dissemination and use ofthe secretiy-
filmed video and all portions and content thereof and all copies thereof, and mandating the
delivery of same to Plaintiffand transferringto Plaintiff all right, title and interest in the secretly-
filmed video and all portions and content thereof and all copies thereof.
46. Plaintiffis entitledto rtfeliminary andpermanent injunctive relief enjoining the
distribution, dissemination and use of the secretly-filmedvideo, and any portions and content
thereof; mandating the delivery of all reproductions and copies ofthe secretly-filmedvideo and
all portionsand content thereof; and transferring to Plaintiff all right, title and interest in and to
the secretly-Filmed video and all portions and content thereof.
47. Unless and until enjoined and restrained by order of this Court, Defendants'
continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be
compensated by monetary damages. By reasonoftheforegomg, Plaintiff is entitledto
preliminary and permanent injunctive relief enjoining the distribution, dissemination anduse of
the secretly-filmedvideo and all portions and content thereof and all copies thereof, and
mandating the deliveryof sameto Plaintiffandtransferring to Plaintiffall right, title and interest
in the secretly-filmedvideo and all portions and content thereof and all copies thereof.
48. Plaintiff is informed and believes and on that basis alleges that the
aforementioned acts of Clem were done intentionally or with a conscious and/or reckless
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disregard of Plaintiff s rights, and withthe intentto vex, injureor annoy, suchas to constitute
oppression, fraud, or malice.
SECOND CAUSE OF ACTION
(Publication of Private Facts Against Defendant Heather Clem)
49. Plaintiffrepeats, re-alleges, adopts andincorporates eachandeveryallegation
containedin Paragraphs 1 through36, inclusive, as thoughfully set forth herein.
50. Clemdisclosedor causedto be disclosedto third parties the contentsofthe
secretiy-filmed videodepicting Plaintiffin or about2006engaged in privateconsensual sexual
relations between with Ms. Clem in a private bedroom. Clem knew, or should have known, that
the secretly-filmed videocontainedprivate and confidential information; that Plaintiff had a
reasonable expectation ofprivacy in engagingin the activitydepicted inthe secretly-filmed
video; that the secretly-filmed video wastakenwithout Plaintiffs knowledge, consent, or
approval andwouldreveal private and personalthingsabout Plaintiffif disclosed to thirdparties
whichClemhadnoright to disseminate or disclose; andthat thispublication of theseprivate
facts wouldbe offensive andobjectionable to a reasonable personof ordinarysensibilities, and
wouldhavethe naturaltendencyof causingsubstantial damages to Plaintiff.
51. Clem's actions servedno legitimatepublic interest
52. Plaintiffis informed and believes and thereonalleges that Clem, actedwith actual
maliceandreckless disregardofPlaintiffs right to privacy.
53. Unless and until enjoined and restrained by order ofthis Court, Defendants'
continued acts will causePlaintiffsevereand irreparable injurywhichcannot adequately be
compensatedby monetary damages. By reason of the foregoing, Plaintiff is entitled to
preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of
thesecretly-filmed video andall portions and content thereofandall copies thereof, and
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mandating thedelivery of same toPlaintiff and transferring toPlaintiff allright, titleandinterest
inthe secretly-filmed video andall portions andcontent thereofandall copies thereof.
54. As a direct andproximate result of the aforementioned actsbyDefendants,
Plaintiffhas suffered substantial injury, damage, loss, harm, anxiety, embarrassment, humiliation
and shame. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff
has beendamaged andwill be damaged, in an amount subjectto proof.
55. Plaintiff is informed and believes and on that basis alleges that the
aforementioned acts of Defendants were done intentionallyor with a consciousand/or reckless
disregard ofPlaintiffs rights, and withtheintent tovex, injure or annoy, such as to constitute
oppression, fraud, or malice.
THIRD CAUSE OF ACTION
(Publication of Private Facts as Against the Gawker Defendants)
56. Plaintiffrepeats, re-alleges, adopts andincorporates eachandeveryallegation
contained inParagraphs 1through 36, inclusive, as thoughfullyset forthherein.
57. The GawkerDefendants disclosed to the publicthe contents ofthe confidential
Video depicting Plaintifffully naked andengaged inprivate consensual sexual relations with
Clem ina private bedroom. TheGawker Defendants knew or should have known thattheVideo
contained private andconfidential information, andthat Plaintiffhada reasonable expectation of
privacy in beingfullynakedandengaged in consensual sexual relations in a private bedroom,
and that the Video, taken without Plaintiffs knowledge or consent, would reveal private and
personal things about Plaintiffwhich the Gawker Defendants hadnorightto disseminate,
disclose or exploit, and that the publication of these privatefacts wouldbe offensive and
objectionableto a reasonable person of ordinary sensibilities.
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58. The Gawker Defendants' posting, publishing, distributing, disserninating and
exploiting of Plaintiff engaged insexual relations inprivate quarters was notcarried outfor
reasonable orlegitimate purposes. Plaintiffhad a reasonable expectation ofprivacy inbeing
fully naked and having private consensual sexual relations with Clemina private bedroom, and
had noknowledge of, anddidnotconsent to, therecording of such private sexual activity.
59. Theunauthorized publication bythe Gawker Defendants of the Video, Narrative
and any portions orcontent thereof, is offensive and objectionable toPlaintiff, aswell astoany
reasonable person of ordinary sensibilities, andis not of legitimate public concern. Plaintiffdid
not consent toanyuse, distribution or exploitation byDefendants, or anyother persons or
entities, of the Video, Narrative or anyportions or content thereof, whatsoever.
60. The Gawker Defendants knewor shouldhave known that the Video, Narrative
and/or anyportions or content thereof, contained private andconfidential information, andthat
Plaintiffhad a reasonable expectation of privacy inthesexual activities depicted therein, andthat
theGawker Defendants' conduct would reveal private and personal things about Plaintiffwhich
theGawker Defendants hadnoright todisseminate, disclose or exploit, andthatthepublication
ofthese private facts would constitute a clear and egregious violation ofPlaintiffs right of
privacy.
61. The Gawker Defendants violated Plaintiffsfundamental privacy rights bythe
conduct alleged herein, including theoutrageous intrusion into Plaintiffsprivacy and the
publication, dssemination, exploitation oftheVideo, Narrative and/or any portions or content
thereof, inanunprivileged manner calculated tofinancial capitalize therefromand garner
publicity throughout the world,to unjustly enrichthe Gawker Defendants andin conscious
disregard of Plaintiffs right of privacy.
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62. Plaintiffisinformed and believes and thereon alleges that the Gawker Defendants
acted with actual malice and reckless disregard for Plaintiffs right ofprivacy.
63. The Gawker Defendants have continued toinvade Plaintiffs right ofprivacy by
continuing to disseminate and post the Video and Narrative. Unless and until enjoined and
restrained by order ofthis Court, the Gawker Defendants' continued acts will cause Plaintiffto
continue toincur severe and irreparable injury that cannot adequately becompensated by
monetary damages. By reason ofthe foregoing, Plaintiffisentitled toatemporary restraining
order andprelirriinary andpermanent injunctive reliefenjoining the distribution, dissemination
and use of theVideo andall portions andcontent therefrom, including without limitation all still
images thereof, and the Narrative.
64. As a direct andproximate result of theaforementioned acts bytheGawker
Defendants, Plaintiffhassuffered injury, damage, loss, harm, anxiety, embarrassment,
humiliation, shame, and severe emotional distress inanamount subject toproof.
65. Plaintiffis informed and believes and onthatbasis alleges thatthe
aforementioned acts oftheGawker Defendants were done intentionally or with a conscious
and/or reckless disregard ofPlaintiffs rights, and with the intent tovex, injure orannoy, such as
to constitute oppression, fraud, or malice.
FOURTH CAUSE OF ACTION
(Invasion of Privacy by Intrusion Upon Seclusion Against theGawker Defendants)
66. Plaintiffrepeats, re-alleges, adopts and incorporates each and every allegation
contained inParagraphs 1through 36, inclusive, as though fully set forth herein.
67. The Gawker Defendants, without Plaintiffs consent and against Plaintiffs will,
have grossly invaded Plaintiffs protected rights ofprivacy asrecognized under dieUnited States
Constitution, Florida Constitution, and applicable common law, by obtaining, watching and
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editing the secretly recorded video andaudio footage involving PlaintiffClemandby posting
andpublicly disclosing the Video depicting Plaintifffully nakedandengaged inprivate intimate
consensual sexualrelations with Clemin a privatebedroom, andby describing, in graphic, lurid
detail, the privateactivities that occurred in privatequarters. In doingso, the Gawker
Defendants "peeredintotheprivate bedroom" andenabled the general publicto "peerintothe
privatebedroom" and watchPlaintiffwhenhe was fullynakedandengagedin privatesexual
activity, without Plaintiffs knowledge, authorization or consent
68. The Gawker Defendants' acquiring, viewing, editing, posting, pubHshing,
distributing, disseminating and exploiting of Plaintifffullynakedand engagedin sexualrelations
in privatequarterswas not carriedout for reasonableor legitimatepurposes, but rather to reap
substantial revenues and profits at the expense of Plaintiffand others. Plaintiff had a reasonable
expectation of privacyin havingprivateconsensual sexualrelations with Clemin a private
bedroom, and had no knowledge of, and did not consent to, the recording or dissemination of
such private sexual activity.
69. The actions by the Gawker Defendants are offensive and objectionable to
Plaintiff, and would be offensiveand objectionable any reasonableperson of ordinary
sensibilities, and is not oflegitimate public concern.
70. The Gawker Defendantsknewor shouldhave knownthat the privatevideo and
audiofootage, depicting Plaintiffnaked and engaged in consensual sexual activity in a private
bedroom, contained private and confidential information and content, and that Plaintiff had a
reasonable expectationof privacyin the activities depictedtherein, and that the Gawker
Defendants' conduct would reveal private and personal things about Plaintiff which Defendants
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had no right to disseminate, discloseor exploit, andthat the publicationofthese privatefacts
would constitute a clear and egregious violation ofPlaintiffs right ofprivacy.
71. The Gawker Defendants violated Plaintiffs fundamental privacy rights by the
conduct allegedherein, includingthe outrageous intrusion into Plaintiffs privacy and the
publication, dissemination, and exploitation ofthe Video and Narrative in an unprivileged
mannercalculatedto financially capitalizetherefrom, to garner pubhcity throughout the world,
and to unjustlyenrich the Gawker Defendants in conscious disregard of Plaintiffs right of
privacy.
72. Plaintiff is informed and believes and thereon alleges that the Gawker Defendants
acted with actual malice and reckless disregard of Plaintiffs right of privacy.
73. The Gawker Defendants have continued their invasion ofPlaintiffs right of
privacy by continuing to disseminate and post the VideoandNarrative. Unless and until
enjoined andrestrained by order of this Court, the Gawker Defendants' continued acts will cause
Plaintiffto continue to incur severe and irreparable injury that cannot adequately be compensated
by monetary damages. By reasonof the foregoing, Plaintiff is entitledto a temporaryresttaining
orderand preliminary and permanent injunctive relief enjoining the distribution, dissemination
anduse of the Video and all portions and content therefrom, includingwithout limitationall still
images thereof, and the Narrative.
74. As a direct and proximate result of the aforementioned acts by the Gawker
Defendants, Plaintiff has sufferedinjury, damage, loss, harm, anxiety, embarrassment,
humiliation, shame and severe emotional distress. As a direct and proximate result of the
aforementioned acts by the Gawker Defendants, Plaintiff has been damaged and will be
damaged, in an amount subject to proof.
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75. Plaintiff is informed and believes and on that basis alleges that the
aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless
disregard of Plaintiff s rights, andwiththe intent to vex, injureor annoy, suchas to constitute
oppression, fraud, or malice.
FIFTH CAUSE OF ACTION
(Violation of Florida Common Law Right of Publicity Against the Gawker Defendants)
76. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation
contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.
77. Plaintiff is a professional wrestler, motion picture actor, and television personality
who has enjoyedmainstreampopularityas the character"Hulk Hogan." Plaintiff is a twelve
time world wrestling champion. Plaintiff has devoted a tremendous amount of time and effort
developinghis career and developinghis universal goodwill, reputation and brand. Such efforts
have created considerable commercial value in his name, image, identity and persona.
78. The Gawker Defendants' unauthorized use ofPlaintiffs name, image, identity
and persona in connection with the Video and Narrative constitutes a violation and
misappropriation of Plaintiffs right ofpublicityin that the Gawker Defendantsmisappropriated
Plaintiffs name, likeness, image, identityandpersona by using the Video and Narrativefor the
purpose of commercial gain, without Plaintiffs consent
79. The misappropriation of Plaintiffs publicityrights was for the Gawker
Defendants' advantagein that Plaintiffs name, likeness, image, identity and persona were used
and intended to create and enhance the Gawker Defendants' pecuniary gain and profit
80. The Gawker Defendants have continued to use Plaintiffs publicity rights
continuing to disseminate the VideoandNarrativeat the GawkerSite, notwithstanding
Plaintiffs numerous andrepeatedrequests to Gawker Media anddefendant Dentonthat they
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cease and desist immediately and permanently. Unless and until enjoined and restrainedby
Order ofthis Court, the Gawker Defendants' continued acts will cause Plaintiff severe and
irreparable injury which cannot be adequately compensatedby monetarydamages. Plaintiff is
entitledto a temporary restraining order and preUminary and permanent injunctive relief
enjoiningthe publication, distribution, disseminationand use of the Video and all portions and
content therefrom, including without limitation all still images thereof, and the Narrative.
81. As a direct and proximateresult of the aforementionedacts by the Gawker
Defendants, the Gawker Defendants have earned profits attributableto this unauthorized
commercialuse and exploitation of Plaintiffs name, image and likeness. The amount of such
ill-gotten gains had yet to be ascertained. Plaintiff is entitled to recover all said unjust
enrichment, including all profits earned by the Gawker Defendants as a result ofthe Gawker
Defendants' unauthorized commercial exploitation as herein alleged.
82. Moreover, Plaintiff is entitled to seek and hereby does seek the market value of
the use of his publicity rights in the manner in which they were commercially exploited, without
Plaintiffs permission and against his strenuous objections and legal demands.
83. As a direct and proximate result of the aforementioned acts by the Gawker
Defendants, Plaintiffhas suffered injury, damage, loss, harm, anxiety, embarrassment
humiliation, shame, and severe emotional distress in an amount subject to proof.
84. Plaintiff is informed and believes and on that basis alleges that the
aforementionedacts ofthe Gawker Defendants were done intentionally or with a conscious
and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as
to constitute oppression, fraud, or malice.
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SIXTH CAUSE OF ACTION
(Intentional Infliction of Emotional Distress Against All Defendants)
85. Plaintiffrepeats, re-alleges, adopts andincorporates eachandevery allegation
contained in Paragraphs 1through 36, inclusive as thoughfullyset forthherein.
86. At all timesherein, Clemactedintentionally andunreasonably in creating the
secretly-filmed video andaudio footage andcausing it to be disseminated to thirdparties when
she knewor shouldhave knownthat Plaintiffs emotionaldistress would likelyresult. The
Gawker Defendants actedintentionally andunreasonably in acquiring, viewing, editing,
publishing, distributing and disseminating the Video,andcreatingandpublishing theNarrative,
whenthey knewor shouldhave knownthat emotional distress would likelyresult
Notwithstanding Plaintiffs repeated requests that Defendants ceaseand desist immediately from
their posting and publishing ofthe Video and Narrative, the Gawker Defendants failed and
refused to do so.
87. Defendants' conductwas intentional andmalicious and donefor the purpose of
causing, or was knownby Defendants to likelycause, Plaintiffhumiliation, mental anguishand
severe emotional distress andwas donewiththewanton andreckless disregard of the
consequences to Plaintiff.
88. As such, in doing the actsalleged hereinabove, Defendants actedoutrageously
andbeyond all reasonable bounds of decency, and intentionally inflictedsevereemotional
distress upon Plaintiff, to his detriment
89. As a proximateresult of the aforementioned wrongful conduct, Plaintiffhas
suffered substantial monetary damages, including damages to his personal andprofessional
reputation andcareer, andsubstantial emotional distress, anxiety andworry.
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90. Plaintiff is informedand believes and thereon alleges that Defendants acted with
actual maliceand recklessdisregard ofPlaintiffs right ofprivacy.
91. Unless and until enjoined and restrained by order ofthis Court, Defendants'
continuedacts will causePlaintiff severeand irreparableinjurywhichcannot adequately be
compensatedby monetarydamages. By reason of the foregoing, Plaintiffis entitled to
preliminary and permanent injunctiverelief enjoining the distribution, dissemination and use of
the Video and all portions and content thereofand all copies thereof, and mandating the delivery
of same to Plaintiffand transferringto Plaintiffall right, title and interest in the Video and all
portions and content thereof and all copies thereof, and the Narrative.
92. As a direct and proximate result ofthe aforementioned acts by Defendants,
Plaintiff has suffered substantial monetary damages, including damages to his personal and
professional reputation and career, and substantial injury damage, loss, harm, anxiety,
embarrassment humiliation, shame, and severe emotional distress in an amount that has not yet
been fully ascertained. As a direct and proximate result ofthe aforementioned acts by
Defendants, Plaintiff has been damagedand will be damaged, in an amount subject to proof.
93. Plaintiff is informedand believesand on that basis alleges that the
aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless
disregard of Plaintiffs rights, and withthe intent to vex, injureor annoy, suchas to constitute
oppression, fraud, or malice.
SEVENTH CAUSE OF ACTION
(Negligent Infliction of Emotional Distress Against All Defendants)
94. Plaintiff repeats, re-alleges, adopts and incorporateseachand every allegation
contained in Paragraphs 1 through36, inclusiveas thoughfully set forthherein.
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95. At all times herein, Defendants acted negligently and unreasonably increating the
Video and causing ittobedisseminated tothird parties. Indoing so, Defendants acted beyond
all reasonable bounds ofdecency, and negligently inflicted emotional distress upon Plaintiff, to
his detriment.
96. Defendants' conduct was negligent and proximately caused Plaintiffto suffer
substantial humiliation, mental anguish andsevereemotional distress and was donewiththe
wantonand reckless disregardofthe consequences to Plaintiff.
97. Asaproximate result of theaforementioned wrongful conduct, Plaintiffhas
suffered substantial emotional distress, anxiety andworry.
98. Plaintiff is informed and believes and thereon alleges thatDefendants acted with
actual malice and reckless disregard of Plaintiffs right toprivacy.
99. Unless anduntil enjoined andrestrained byorder of thisCourt, Defendants'
continued acts will cause Plaintiffsevere and irreparable injury which cannot adequately be
compensated bymonetary damages. Byreason of theforegoing, Plaintiffis entitled to
preliminary and permanent injunctive reliefenjoining thedistribution, dissemination and useof
the Video and all portions and content thereofand all copies thereof, and mandating the delivery
ofsame toPlaintiff and transferring toPlaintiff all right, title and interest inthe Video and all
portions andcontent thereofandall copies thereof.
EIGHTH CAUSE OF ACTION
(Violation of section 934.10, Florida Statutes Against All Defendants)
100. Plaintiffrepeats, re-alleges, adopts and incorporates each and every allegation
contained inParagraphs 1through 36, inclusive asthough fully setforth herein.
101. Plaintiff had areasonable expectation ofprivacy inengaging inprivate
consensual sexual relations inaprivate bedroomat allrelevant times, and did not knowabout
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nor consent to, the taping ofthe activity depicted inthe secretly-filmed video, oritspublication
or dissemination.
102. Defendants violated Plaintiffs fundamental privacy rights by the conduct alleged
herein, including theoutrageous intrusion into Plaintiffs privacy andthepublication, and
dissemination ofthe secretly-filmed Video inanunprivileged manner inconscious disregard of
Plaintiffs rights.
103. Defendants disclosed or caused to be disclosed to thirdparties thecontents of the
secretly-filmed video depicting Plaintiffinor about 2006 engaged inprivate consensual sexual
relations between withClemin a private bedroom. Defendants knew, or should haveknown,
that the Videocontainedprivateand confidentialinformation; that Plaintiffhad a reasonable
expectation of privacy in engaging inthe activity depicted inthe Video; that the Video was taken
without Plaintiffs knowledge, consent, orapproval and would reveal private and personal things
about Plaintiffif disclosed tothird parties which Defendants hadnoright to disseminate or
disclose; and thatthispublication of these private facts would beoffensive andobjectionable to a
reasonable person of ordinary sensibilities, and would have thenatural tendency of causing
substantial damages to Plaintiff.
104. Defendants' actions havenot served anylegitimate public interest.
105. Plaintiffis informed andbelieves andthereon alleges that Defendants have acted
with actual malice andreckless disregard of Plaintiffs rights, including hisrightto privacy.
106. Unless anduntil enjoined andrestrained by orderof this Court, Defendants'
continued acts will cause Plaintiff severe andirreparable injury which cannot adequately be
compensated by monetary damages. Byreasonof the foregoing, Plaintiffis entitled to
preliminary andpermanent injunctive relief enjoining the distribution, dissemination anduse of
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the Videoand all portionsand contentthereof and all copiesthereof, and mandatingthe delivery
of sameto Plaintiffand transferring to Plaintiff all right, title and interest in the Video and all
portionsand content thereof and all copiesthereof.
107. As a direct and proximate result of the aforementioned acts by Defendants,
Plaintiff has suffered substantial injury, damage, loss, harm, anxiety, embarrassment,
humiliation, shame, and severe emotional distress. As a direct and proximateresult of the
aforementioned acts by Defendants, Plaintiffhas been damagedand will be damaged, in an
amount subject to proof.
108. Plaintiffis informed and believes and on that basis alleges that the
aforementionedacts ofDefendants were done intentionally or with a conscious and/or reckless
disregardof Plamtiffs rights, and with the intent to vex, injure or annoy, such as to constitute
oppression, fraud, or malice.
PRAYER FOR RELIEF
WHEREFORE, plaintiffTerry Gene Bollea prays for judgment against defendants
Heather Clem aka Heather Cole, Gawker Media, LLC aka Gawker Media, Gawker Media
Group, Inc. aka Gawker Media, Gawker Entertainment, LLC, Gawker Technology, LLC,
Gawker Sales, LLC, Nick Denton, AJ. Daulerio, Kate Bennert, Blogwire Hungary Szellemi
Alkotast Hasznosito KFT aka Gawker Media as follows:
1. For an award of general and special damagesin an amount in excess ofthe
minimumjurisdictional limits ofthis Court in accordancewith proof at trial together with
interest thereon at the maximum legal rate;
2. For costs ofsuit incurred herein;
3. For an Order and Judgment transferring to Plaintiffall of Defendants' right title
and interest in and to the secretly-recorded video and audio footage depicting Plaintiffs sexual
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encounterwith Clem, and all portions and content thereof, and all copies and reproductions
thereof contained in all media;
4. For an Order and Judgment requiringthe delivery to Plaintiff of all copies ofthe
secretly-recordedvideo and audio footage depictingPlaintiffs sexual encounter with Clem, and
all portionsand content thereof, in all formatsand all forms of media, includingelectronicand
physical media, withinDefendants' possession, custodyor control, includingwithout limitation
turning over to Plaintiff any and all storage devices (such as CDs, DVDs, hard drives, flash
drives, tapes, and disks) containing same;
5. For preliminary and permanent injunction against Defendants and ail persons
acting under their control, from any and all activity that would cause the distributing,
disseminating, publishing, displaying, posting for viewor access on or through the Internet or
any other manner or media outlet, broadcasting, tramferring, licensing, selling, offering to sell or
license, or otherwiseusing, exploitingor attemptingto exploit, the secretly-recorded video and
audio footage depicting Plaintiffs sexual encounter with Clem, or any portions or content
thereof or any copies thereof, in any and all formats and media, including all electronic and
physical media;
6. For an Order and Judgment requiring Defendants to turn over to Plaintiffall
informationpertaining to the secretly-recordedvideo and audio footage depicting Plaintiffs
sexual encounter with Clem, including without limitation, all activity by all persons and entities
relatedto the creation, storage, transportation, editing, distributing, disseminating, publishing,
displaying, posting for view or access on or through the Internet or any other manner or media
outlet, broadcasting, transferring, licensing, selling, offering to sell or license, or otherwise using,
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exploiting or attempting to exploit, suchfootage or anyportions or content thereofor anycopies
thereof, in anyandall formats andmedia, including all electronic andphysical media;
7. For a constructive trust to be placeduponDefendants andall personsactingon
theirbehalfor undertheir direction or control, as to all revenues andprofits received by any and
all such individuals, including Defendants, to be held for the benefit of Plaintiff, and to be
disgorged in their entirety to Plaintiff, in connection withthe secretly-recorded videoand audio
footage depicting Plaintiffs sexual encounter withClem, including the publishing of the Video
and Narrative;
8. For suchother andfurtherrelief as to this court may deemandproper.
DEMAND FORJURY TRIAL
PlaintiffTerryGeneBolleaherebydemands a trial byjury on all issues sotriable.
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Respectfully Submitted,
DATED: December 28,2012
DATED: December 28,2012
{BC00026189:UnS7801.1 EAST\52369214.1
Kenneth G. Turkel, Esq.
Florida Bar No. 867233
kturkel@bajoeuva.com
Christina K. Ramirez
Florida Bar No. 0954497
craflairez@bajocuva.com
BAJO CUVACOHEN& TUBKEL, P.A.
100N. TampaStreet,Suite 1900
Tampa, FL33602
Telephone: (813)443-2199
Facsimile: (813)443-2193
rles J. Harder, Esq.
California Bar No. 184593
(Pro HocVice application tobe filed)
char^r@HMAfirm.com
HARDER MIRELL&ABRAMS LLP
1801 Avenue ofthe Stars, Suite 1120
Los Angeles, CA 90067
Telephone: (424)203-1600
Facsimile: (424)203-1601
Attorneysfor PlaintiffTerry Gene Bottea
27