The opinion of the court was delivered by: Robertson, District Judge.
Plaintiffs Shan and Morgan Sparshott assert federal and common
law privacy violations stemming from defendants' alleged
wiretapping and video surveillance of their activities at home
and at work, by and through the actions of a former senior
officer and director of Feld Entertainment, Inc. Before the
Court is defendants' motion to dismiss all claims against Feld's
wholly-owned subsidiary Sells-Floto, to dismiss the claims of
conspiracy and intentional infliction of emotional distress
against Feld and to transfer the remainder of the case to the
Eastern District of Virginia. For the reasons set forth below,
the motion to dismiss Sells-Floto will be granted. The motion
for partial dismissal and transfer as to Feld will be denied.
Shan Sparshott has worked as a travel administrator at Feld's
headquarters in Vienna, Virginia, since August 17, 1992. Feld
Entertainment, Inc. is a privately owned company that has rights
to certain exhibitions, shows and other public entertainment,
including Ringling Brothers Barnum & Bailey Circus, Walt
Disney's World on Ice and Siegfried & Roy. The other named
defendant, Sells-Floto, is a wholly-owned subsidiary of Feld. It
manufactures and distributes circus supplies and related
paraphernalia. At all times relevant to this lawsuit, Charles F.
Smith was a director, officer and stockholder of Feld and the
senior vice president of Sells-Floto.
Plaintiffs allege that defendants, through the actions of Mr.
Smith and other unnamed employees, caused the surreptitious
placement of video cameras in the ceiling above Shan Sparshott's
work space and the installation of electronic monitoring devices
to record her telephone conversations.
Plaintiffs also allege privacy violations at their home. Shan
and Morgan Sharshott were the sole occupants of a home located
in McLean, Virginia. Mr. Smith owned the home. Plaintiffs allege
that Mr. Smith and unnamed others caused the installation of
electronic monitoring devices designed to permit electronic
eavesdropping and recording of their telephone conversations,
and that Mr. Smith even arranged for video recording of
plaintiffs' private and intimate affairs.
On or about March 7, 1997, Shan Sparshott discovered that an
electronic wiretapping device had been placed on her work
telephone. She also discovered the existence of numerous
videotapes of both plaintiffs engaged in various private and
intimate activities in their home, and of Shan Sparshott at her
Plaintiffs filed their original complaint, only against Feld,
on March 3, 1999. Feld moved to dismiss, plaintiffs opposed, and
Feld replied. Plaintiffs then filed an amended superseding
complaint on June 2, 1999, recasting some of their claims to
avoid dismissal, and adding Sells-Floto, Inc. as an additional
defendant. The amended complaint sets forth eleven causes of
action. Those relevant to this motion may be grouped as follows:
A. Claims Against Sells-Floto
The claims against Sells-Floto were added by an amended
complaint filed June 2, 1999. It is undisputed that, unless the
amendment relates back to the date of plaintiffs' original
complaint, those claims are barred by the applicable two-year
statute of limitations. Fed.R.Civ.P. 15(c) provides, in relevant
(3) . . . the party to be brought in by amendment (A)
has received such notice of the institution of the
action that the party will not be prejudiced in
maintaining a defense on the merits, and (B) knew or
should have known that, but for a mistake concerning
the identity of the proper party, the action would
have been brought against the party.
Subsection (c)(3) does not preserve plaintiffs' claims against
Sells-Floto, because, in this Circuit, the word "mistake" is
narrowly interpreted to preclude relation back of amendments
where a plaintiff was fully aware of the defendant's identity
during the limitations period. See Rendall-Speranza v. Nassim,
107 F.3d 913, 918 (D.C. Cir. 1997) ("Nothing in [Rule 15] or in
the Notes indicates that the provision applies to a plaintiff
who was fully aware of the potential defendant's identity but
not of its responsibility of the harm alleged"). Plaintiffs have
not asserted or shown that the dismissal of Sells-Floto will
have "harsh consequences" for their case, see id. They merely
suggest that they had "uncertainty" about the "precise nature"
of the corporate affiliation between Feld and Sells-Floto and
Mr. Smith's involvement with the companies during the
limitations period, see Pls' Opp'n at 15-16 & n. 11. Such
uncertainty is not a "mistake of identity" under
Plaintiffs' attempt to invoke subsection (c)(1) to preserve
their claims under Virginia's rule governing relation back of
amendments is also unsuccessful, because relation back would not
be permitted under Virginia law. Plaintiffs assert that the
Virginia law of relation back is more "liberal" than federal
law. But the Virginia Supreme Court cases upon which they rely
for that proposition are inapposite. Lake v. Northern Virginia
Women's Med Ctr., 253 Va. 255, 483 S.E.2d 220 (1997), and
Jacobson v. Southern Biscuit Co., 198 Va. 813, 97 S.E.2d 1
(1957), both involved substituting a defendant in classic
misnomer situations, as opposed to adding a defendant whose
proper identity was known to the plaintiff during the
limitations period. Further, there is no indication in this
record that plaintiffs' failure to name Sells-Floto "was
occasioned by the acts of the defendants," Lake, 483 S.E.2d at
221, or that plaintiffs simply erred in naming the correct
defendant, see Jacobson, 97 S.E.2d at 4.
B. Intentional Infliction of Emotional Distress
Defendants' attempt to bring themselves under the rule of
Russo v. White, 241 Va. 23, 400 S.E.2d 160 (1991), is
unavailing. In that case, the Virginia Supreme Court dismissed
an IIED claim that merely alleged that plaintiff was "nervous,
could not sleep, experienced stress and its physical symptoms,
withdrew from activities, and was unable to concentrate at
work." Id. at 162 (internal quotations omitted). The court
noted in that case that "[t]here is no claim, for example, that
[the plaintiff] had any objective physical injury caused by the
stress, that she sought medical attention, that she was confined
at home or in a hospital, or that she lost income," Id. In
this case, by contrast, plaintiffs have alleged that they
"sustained injuries and damages" including "emotional damages,
medical expenses, costs, fees, etc." Am. Compl. ¶¶ 17, 30, 122.
Those allegations are sufficient to survive a motion to dismiss
under Virginia law at this preliminary stage of the proceedings.
Defendants argue that plaintiffs' conspiracy claim should be
dismissed because neither the federal nor Virginia wiretap
statute creates a private cause of action and because, in any
event, Virginia civil conspiracy law requires a combination of
two persons — something that plaintiffs cannot demonstrate here
in view of their allegations that Mr. Smith was the agent of the
Defendants are correct that neither statute on its face
creates a private cause of
action. Virginia common law recognizes a claim for civil
conspiracy, however, based upon allegations of "a combination of
two or more persons . . . to accomplish . . . some unlawful
purpose." Hechler Chevrolet, Inc. v. General Motors,
230 Va. 396, 337 S.E.2d 744, 748 (1985).
For conspiracy purposes, "a combination of two or more
persons," must comprise separate and independent actors. See
Perk v. Vector Resources Group, Inc., 253 Va. 310,
485 S.E.2d 140, 144 (1997). Defendants assert that plaintiffs have made
allegations of agency that defeat their conspiracy claim,
because agents are not separate and independent actors. This
argument is premature. Plaintiffs may ultimately be forced to
elect between their conspiracy and agency theories, but they
need not do so yet.
D. Transfer to the Eastern District of Virginia
Defendants urge that this case be transferred to the Eastern
District of Virginia, where a pending bankruptcy proceeding
involves many of the same issues and parties. A plaintiffs
choice of forum is entitled to significant weight and should not
be disturbed absent a compelling showing, however, see National
Bank of Washington v. Mallery, 669 F. Supp. 22, 29 (D.C. 1987),
and the mere existence of a related case in another forum is
insufficient grounds for transfer, see International Bhd. of
Painters v. Best Painting, 621 F. Supp. 906, 907 (D.C. 1985).
Both sides have presented detailed arguments for and against
the proposed transfer. I have concluded that the factors bearing
on the "convenience of the parties" and the "interests of
justice," see 28 U.S.C. § 1404, 1412, are in equipoise. The
deference owed to the plaintiffs' choice of forum tips the scale
against the transfer motion, see Adams v. Bell, 711 F.2d 161,
194 n. 115 (D.C. Cir. 1983) (en banc) ("To begin with, it is
plaintiffs' privilege to choose the forum and their preference
must be given substantial weight in the transfer analysis")
(citing 15 Charles A. Wright, Arthur R. Miller & Edward H.
Cooper § 3848).
An appropriate order accompanies this memorandum.
For the reasons set forth in the accompanying memorandum, it
is this 1st day of February 2000,
ORDERED that defendants' motion to dismiss [# 14] all claims
against defendant Sells-Floto is granted. Sells-Floto is
dismissed as a defendant. It is
FURTHER ORDERED that defendants' motion to dismiss counts V,
VII and X of the amended complaint is denied. And it is
FURTHER ORDERED that defendants' motion to transfer this
case to the Eastern District of Virginia is denied.
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