biaggi

POST OFFICE BOX 2452 Secretary ofthe Commonwealth

NOTICE OF SERVICE OF PROCESS

Juan A. Davila

813 17th Street

Apt BFort Lauderdale, FL 33305United States

Centell Colonzo McNeil

vs.

Juan A. Davila

Summons and ComplaintNotice

RICHMOND, VIRGINIA 23218-2452

11/12/2015

Dear Sir/Madam:

Youare beingserved with the enclosed notice undersection 8.01-329 of the Codeof Virginiawhich designates the Secretary of the Commonwealth as statutory agent for Service of Process.

If you have any questions about the matter, PLEASE contact the CLERK of the enclosed/belowmentioned court or any attorney of your choice. Our officedoes not accept payments on behalfof debts. The Secretary of the Commonwealth's ONLY responsibility is to mail the enclosedpapers to you.

COURT:

Richmond City Circuit CourtJohn Marshall Court Building400 North 9th Street

Richmond, VA 23219

Service of Process Clerk //OSecretary of the Commonw^^h'sOffice

Case 3:15-cv-00751-MHL Document 1-1 Filed 12/09/15 Page 1 of 23 PageID# 5

AFFIDAVIT FOR SERVICE OF PROCESS ON THESECRETARY OF THE COMMONWEALTH

Commonwealth of Virginia

Richmond Citv Circuit Court

Case No.760CL15004577-00

Cemel 1 Colonzo McNeil

c/o Thomas H. Roberts & Associates, PC

105 South 1st Street

Richmond, VA 23219

Juan A. Davila

813 17lh Street Apt B

Fort Laudcrdalc l-L. 33305

Circuit Court

TO THE PERSON PREPARING THIS AFFIDAVIT: Youmustcomply with the appropriate requirements listedon the backof this I'omi.

Attachments; S Summons andComplaint ^ Notice•

1,the undersigned Affiant, state under oath that

HI the above-named defendant Dwhose last known address is IE! same asabove CD

1. S is anon-resident of the Commonwealth of Virginia or a foreign corporation and Virginia Code §8.01-328.1 (A)applies (see NON-RESIDENCE GROUNDS REQUIREMENT on reverse).

2. D is aperson whom the party seeking service, after exercising due diligence, has been unable to locate (see DUE DILIGENCEREQUIREMENT ON BACK)

DATE

State of City • County of 20iÂcknowledged, subscribed and sworn to before me this day by /I^. "** ^

MTE

is the hearing dale and time on the attached process or notice.

Q<UG1SJ—Lj--.vIAGlSTR.-\H^t^ lau i"i.»isi.n. t //A

NoJar> R^sfra^n No My commission expires;

PRlbayÂME OF SIGNATOR\

NOTARY PUBLIC

JONATHAN MICHAELARTHUR• PARTY a PART.if'S ATrORN^^• CT PARTVS AGENT • ('/>«rTVSJ<F.GUI.AR ANJ) HONA l-UM-:

registration #76(^19

D Verification oftlie date offiling ofthe certificate ofcorj^jJliancc is requested and aself-addressed stamped envelope is proviaed.

NOTICE TOTHERECIPIENT from theOffice of theSecretary of theCommonwealth of Virginia:You are being .served with this notice and attached pleadings under Section 8.01-329 of the Code ofVirginia which designates the Secretaryof the Commonwealth asstatutory agent for Ser\'ice of Process. The Secrciar>' of the Commonwealth's ONLY responsibility is tomail, bycertified mail, return receipt requested, the enclosed papers toyou. Ifyou have any questions concerning these documents, you may wish toseek advice from a lawyer.

SERVICE OF PROCESS IS EFFECTIVE ON lilE DA I E THA TTHE CERTIFICATE 01" COMPLIANCE IS l-ILED WITH THE AliOVE-NAMED COURT.

CERTIFICATE OF COiMPLIANCE1, the undersigned. Clerk in the Office of theSecretary of the Commonwealth, hereby certify the following:

1• On legal sen'ice inthe above-styled case was made upon the Secretary- of theCommonwealth, as statutory' ageni for personsto be served in accordance withSection8.01-329of the Codeof Virginia, as amended.

2. On j^Qy....l...3...2D|5 jpapers described in the Affidavit were forwarded by certified mail, return receiptrequested, to die party designated to be served with process in the Allldavit.

FORM CC-i418 (MASTER. PAGE ONE OF TWO) 11/07VA, CODE §§ 8.0!-301, -310,-329; 55-2IS.I; 57-51

SERV1CT-: OF PROCT-SS CLERK. DESIGNATEBY n il-: ALTHORrrv of ri ie secretary of the commonwealth

n


NON-RESIDENCE GROUNDSREQUIREMENT:If boxnumber 1 is checked, inserttheappropriate subsection number:

A court may exercise personal jurisdiction over a person, who acts directly orby anagent, as to a cause ofactionarising from the person's:

1. Transacting anybusiness in this Commonwealth;

2. Contracting to supplyservicesor things in this Commonwealth;

3. Causing tortious injuryby an act or omission in this Commonwealth;

4. Causing tortious injuryin this Commonwealth by an act or omission outside this Commonwealth ifheregularly does or solicits business, or engages in any otherpersistent courseof conduct, or derivessubstantial revenue fromgoodsused or consumed or services rendered in this Commonwealth;

5. Causing injury inthis Commonwealth to any person bybreach ofwarranty expressly or impliedly made inthesale ofgoods outside tMs Commonwealth when hemight reasonably have expected such person touse, consume, or be affected by the goods in this Commonwealth, providedthathe alsoregularly does orsolicits business, or engages in anyotherpersistent course of conduct, or derives substantial revenue fromgoodsused or consumed or services rendered in this Commonwealth;

6. Having an interest in,using, or possessing realproperty in thisCommonwealth;

7. Contractingto msure any person, property, or risk locatedwithin this Commonwealth at the time ofcontracting;

8(ii), Having been ordered topay spousal support orchild support pursuant to anorder entered byany court ofcompetentjurisdiction in this Conamonwealth having jurisdiction over such person; or

10. Having incurred a liability fortaxes, fines, penalties, interest, or other charges to any political subdivisionof the Commonwealth.

DUE DILIGENCE REQUIREMENT:

If boxnumber 2 is checked, the following provision applies:

When the person tobeserved is a resident, the signature ofanattorney, party oragent ofthe person seeking ...service onsuchaffidavit shall constitute a certificate by him thatprocess hasbeendelivered to thesheriffor to adisinterested person aspermitted by § 8.01-293 forexecution and, if thesheriffor disinterested person wasunable to execute suchservice, that theperson seeking service hasbeenunable, after exercising duediligence,to locate the person to be served.

FORMCC-1418(MASTER, PAGETWOOF TWO)11/07


COMMONWEALTH OF VIRGINIA

RICHMOND CITY CIRCUIT COURT

Civil Division

400 NORTH 9TH STREET

RICHMOND VA 23219

Summons

To: JUAN A DAVILA Case No 760CL15004577-00SVE SECRETARY OF THECOMMONWEALTH

The party upon whom this summons and the attached complaint are served is hereby notifiedthat unless within 21 days after such service, response is made by filing in the clerk'sofficeof this court a pleading inwriting, inproper legal form, the allegations and charges may betaken as admitted and thecourt may enter an order, judgment, or decree against such partyeitherby default or after hearing evidence.

Appearance in person is not required by this summons.

Done in the name of the Commonwealth of Virginia on,Monday, November 02, 2015

Clerk of Court: EDWARD F JEWETT

by t(GfcBRKyDEPUTY CLERK )

Instructions:

Hearing Official:

MOONEY, BRET HAttorney sname. 804-783-2000


VIRGEm:

IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND

CENTELL COLONZO MCOTIL,

Plaintiff,

V. • Civil Case No.

BIAGGI PRODUCTIONS, LLC,Serve Registered Agent:

Juan Melecio Davila

1201N Federal Hi^way, #7605Fort Lauderdale,FL 33338

JUAN A. DAVILA,. Serve: 813 17" Street Apt B

' Fort Lauderdale, FL 33305-3046 (Broward Counfy)

Defendant.

COMPLAINT

Comesnow Centell McNeil, by and throu^ counsel, and for his complaint, jointly and .

severallyagainstBiaggiProductions, LLCandJuan A. Davila (collectively, 'the Defendants"),

he states as follows;

Parties

1. Centell McNeil ("Plaintiff) is a citizenof Virginia, a resident of the Cityof Richmond,.

Virginia, and a police officer for the City of,RichmondPolice Department.

2. DefendantBiaggi Productions,. LLC ("Defendant Company") is a limited liability

coiporation domiciled in-FortLauderdê, Florida at 1201 North Federal Hi^way,

#7605, Fort LauderdalOiFL 33338. . • .


3. DefendantJuan A. Davila ("DefendantDavila'*) is a resideint ofFort Lauderdale,Florida.

Defendant Davila is alsoknown as Juan Melecio, Juan MelecioDavila, JolinMelecio

Davila, JohnMelecio, Antonio Biaggi, andAntonio BiaggiDavila.

Jurisdiction and Venue

4. This courthas jurisdictionpursuantto VirginiaCode § 17.1-513 as this is a civil case

involving a claim in excess of$4,500.00 exclusive of interest and costs.

5. Pursuantto Virginia Code § 8.01-262(3), venue is proper in this circuit as the location of

factwitnesses, plaintiff, md evidence givingrise to this actionis withinthe City of

Richmond.

6. No federal claimsor causesof action baseduponfederal law are alleged herein.

' Background Facts

7. Plaintiffis a service member inthe Army National Guard and went through basic training

from March 2014 until July 2014.

8. Through basic training, Plaintiffmet another service member ofthe Army Na:tional

Guard named Travis. " . " .

9. PJaintiiffandTravis discussed, among other things. Plaintiffpurchasing a rifle.

10. Travis informed PlaintiJEfthat Travis could provide recommendations and tips regarding .I

the customization ofany prospective rifle that Plaintiffwould purchase.

11. On December5,2014, Plaintiffpurchased a BushmasterHeavy Barrel 16-inchCarbine

Assault Rifle ('the rifle"! from www.GrabAGun.com.

12. On or about December 11,2014, Plaintiffreceived the rifle at the Southern Police

Equipment located at 7609 Midlothian Turnpike, Richmond, VA 23235. .

•13. On December 19,2014 at 7:30 p.m., Plaintiff texted &e raessage "Hey" to a phone

number he believed to belong to his friend Travis.


14. On December23,2014 atl0:46' a.m.,Plaintiff- havingreceivedno responsefr<Mn Travis

- textedthe samephonenumber he believed to belong to Travis, stating "Heywhat's up I

need your help on this stock bêl feature".

15..Onor aboutDecember29,2014, Plaintiffcalledvia FaceTime("the FaceTitne call")

Travis- using the samephone numberPlaintiffused to text the abovemessages - to

informTravisthat Plaintiffhad recentlypurchasedthe rifle.

16. Unbeknownst to Plaintiff, the number he used to text and to FaceTime Travis was an

incorrect number which belonged toDefend^t Davila and/or Defendant Company.

The FaceTime Call

17. Upon connecting the FaceTime call with Defendant Davila, Plaintiffdid not see Travis

and realized, his own rmstake.

18.Xônrealizing his mistake, Plaintiffprofusely apologized to Defendant Davilafor• • • -

making the FaceTime call.

19vPlaintiffalso observed that-Defendant Davila possessed a blue-colored video caniera

pointed at Plaintiff.

20.Plaintiffended theFaceTime callwithDefendant Davila after having apologized to

Defendant Davilabutwithout having received a verbal response fromDefendantDavila

during the FaceTinie call.

21. On the same day, soon after the FaceTime call with Defendant Davila, Plaintifftexted the

DefendantDavila's numberwith the text message, "Dudey (sic) didn't u (sic) tell me t

had the wrongnumber the whole time I thoughtu (sic)where (sic)my cousinwho I was

trying to reach for weeks lol."


22. Plaintiffalso attempted to call the Defendant Davila viatelephone torepeat hisapology

toDefaxdant Davila. Plaintiff informed Defendant Davila thatPlaintiffis employed as a

police officer forthe Cityof Richmond Police Department.

23.Defendant Davilausedillicitlanguage in his response to PlaintiffandtoldPlaintiffonthe

telephone, inter alia, '1^ me suck your dick." Defendant Davila also informed Plaintiff

that hehad posted Plaintiffspicture withtherifle onsocial media, including butnot

limited toFacebook. Defendant Davila continued touseillicit language with Plaintiffand

then Defendant Davila ended thephone call.

24. Onthesame day and soon after Defendant Davila ended thephone call wititi Plaintiff,

•'Defendant Davilamade, several otherphone calls to Plaintifffrom ablocked number and

Plaintifftold Defendant Davila tostop using illicit-language orPlaintiffwould file a

harassment policereport. Defendant Davila subsequently ended thephone call.

25. After Defendant Davila stopped making phone calls toPlaintiff, Plaintiffreceived

messages fromsomeunknown email account, containing racistand derogatory feinaidcs,

and other statements referencing theFaceTiine calland telephone calls from DeiS^Hant

Davila to Plaintiff.

26. Upon mformation andbelief. Defendant Davila sent the aforementioned email messages

to Plaintiff.

27. Specifically, onDecember 29,2014 at 10:52 a.m.. DefendantDavilasentan emal '

•*messagetoPlaintiffstating,"GQPICKCOTTON"YOUNIGGER.LMFAO/V "

28. On December 29,2014 at 12:10 p.m.. Plaintiffresponded tothe email message stating,

*T)on*t know who this isbutthis email will besaved for law enforcementpurposes

thanks." ••" ' "

4


29. On December 29,2014 at 12:11 p.m,, Defendant Davila sent arqply email message to

Plaintiffstating,"AND SO WILLTHE EMAILABOUTYOU THREATENING TO

SHOOT ME."

30. Plaintiffnever sent Defendant Davila anemail with any threatening content and/or

statements.

31. Joshua Boyle, the owner ofthe email account that was used to send the racist messages to'

Plaintiff, subsequently contacted Plaintifftoapologize for tiie messages.

32. Joshua Boyle informed Plaintiffthat Joshua. Boyle used tobefiiends with Defendant

Davila.

33. Joshua Boyle learned that DefendantDavila had hacked his email account to send the

racist and defamatorymessages to Plaintiff. • • .

The Defendants^ Social Media Accounts

34.Defendant Davila owns andoperates apersonal Facebook account underthename John

Melecio Davila.

35. Defendant Company owns and operates a Facebook account ^d a Twitter account, the

Facebook account under the name Antonio Biaggi Davila, and the Twitter accoimt liiider

the name Antonio Biaggi xxx, @X!Cxbiaggi.

3€.Defendant Davila is anactor in thepornography industry who uses theactor name

Antonio Biaggi.

37. Defendant Davila istiae owner ofthe Defendant Company, apornography production

company named Biaggi Productions, LLC.

38.Defendant Companyproduces pornographic videos onthe Internet at

www.biaggivideos.com. .


39. Defendant Company's social media accounts feature the website link to the Defendant

Company's pornographic videos at www.biagfijvideos.com.

40. DefendantCompany's socialmedia accounts feature a graphicdepictionof the name of

the above pornographicwebsite, which includes, but is not limited to, bubble letters of

the websitename "biaggivideos.com"smeared in a white-colored graphic representation

depictinga semen-like substmce. DefendantCompany's social media accounts also

feature a picture ofDefendantDavila in a topless state, and the name Antonio Biaggi xxx

or Antonio BiaggiDavilanext to Defendant Davila's picture.

41. DefendantCompany's Twitter account"@XxxBiaggi" includesthe abovereferenced

graphic images and name,,and also includes the- followingdescription:

"Antonio Biaggi xxx@XxxBiaggi Pomactor and Owner "atBiag^viUeos.com Blog Antoniobiaggixxx.blogspotxom Animal Advocatemodel, movie Actor imdi (sic) Films"

The Defendants Published Statements on Social Media

. The Twitter Post

,42. Beginnmg on or about December 29,2014 at 8:46 a.m., the Defendants published

statements to social media websites, including theabove referenced Facebook iid

Twitter accounts, containing information that they knew orshould have.Im6wn contained

false and defamatorystatênts of fact of or concerningplaintiff causing damage to

plaintiff andto his reputation. .

43. The statements were published to third persons, including without liitnitation to Twitter

users, and others containing false factual statements including butnotlimited to the

following statement that the Defendants published in Spanish on theDefendant

Company's Twitteraccount @XxxBiaggi on.December29,2014at 8:46a.m. (hereinafter

"the Twitter posf*): • '

6


**Este cabron de Hopewell, Virginia me Uama FaceTime que mvaamatar. Lapolicia Estaenrnycasamas infoluego"

44. The English translation ofthe foregoing Twitter post is'*this [bastard] [motherjEucker]/

[similar derogatory term] from Hopewell-, Virginia FaceTime calls me that he isgoing to

killme.The police are" in myhouse more infolater."

45. Tjie Twitter post also included apicture ofPlaintiffwith PlaintifPs personal email

address.

46. Specifically, the picture inthe Twitter post displayed Plaintiffs upper body and face,

with Plaintiffwearing awhite tank undershirt, holding a rifle inhisright hand, and with

Plaintiffs personal gmail address listed onthe top left ofthe picture.

47.Theforegoing statement ontheTwitter postis false.

48. Uponinformation andbelief, thepolicewereneverin Defendant Davila's houseat 8:46

a.m. on December 29,2014.

49. Plaintiffnever toldDefendant Davila heis going tokillDefendant Davila. S.a&er, "'.

Plaintiffapologized profusely to. Defatidant Davila forhaving called thewrong number.

50. Tke Twitter post generated 20 rq)lies, and 5retweets from other Twitter users. .

51. Among the 20replifes to the Twitter post, Twitter users published statements indicating

thattheybelievedthe veracity of theTwitter post. .

52. Onesuch Twitter user, @emmdoll, replied onDecember 29,2014 at 10:00 im. "Es!de'

verdad?" whichtranslates in Engli^ to "is this true?"

53. The Defendants replied to @emmdoll onDecember 29,2014 at 11:31 a.m. stating, "Si

Yallame lapolicia yFBP'which translates to "yes I already called thepolice and FBI."

7


The Facebook Post

54. Additionally, theDefendants posted the following statements ontheDefendant

..Company's Facebook acco-unt onDecember 29,2014 at 3:55*p.m. (hereinafter **the

Facebookpost") containing falsefactual statements published to thirdpersonsincluding

without limitation to Facebook users, and others:

"Jason Ander from NY and CentellMcneil (sic)police from Virginia, (sic) heshouldbe a shame(sic) of him self (sic)for doingthis shit, (sic)where the peopleinvolvedin thisUgly andF Stupid (sic)move to FaceTimeme I don't how (sic)theygot my info, but (sic) thismorning theyFaceTime morethan 25 timestoshow me guns on Camera, (sic)the policealready has a (sic)investigation..

55. Theforegoing statementon the Facebookpost is false.

56.Uponinformation andbelief,therewas no policeinvestigation at this time at 3:55p.m.

on December 29.2014.

57. Plaintiffdid not FaceTimethe DefendantDavilamore than 25 times to showhim gun(s)

/on camera.

58.Upon infonnation.andbeHef, the Facebookpost includeda picture of the aforementioned

"Jason Ander from NY."

59.The Facebookpost also included a picture of Plaintiff with Plaintiff's personal emMl

address.

60. Specifically, thePlaintiff's picture in theFacebookpost displayed theupper body ^d

face of Plaintiffwearing a whitetankundershirt, holding a rifle in hisrigjithand,mth

Plaintiff'spersonal gmail address listedon thetop leftof the picture.

61. The Facebook post generated eighteen (18) comments from other Facebook users who

saw and/or read the Faceijookpost about Plaintiff.

62.,-The otherFacebookusers postedcommentson the Facebookpost including, but not

limited to the following statements:


a. "This jerk need (sic) to be behind bars/'

b. "Sickflicks. Keepwor|dngwith theauthorities andkeepstrongAntonio"

c. "Hold up 2 Stalkers and one is a Cop?"

d. "I would think that Ms intentions whether as a threat or harassment are illegal andX

shouldbe investigated as such.You did the right thingby notifyingthe police!"

e. "He is totally Loco (sic)."

The Timelme Post

63. Additionally, theDefendants posted another statement (hereinafter "theTimeline post")

•' on or around December 29,2014, concerningPlaintiff on the Defendant Company's

Facebookaccount"timeline"alongwith the picture of Plaintiffused in the other social

mediaposts. The statements werepublishedto third persons, includingwithout

limitation to Facebook users, ^d others containing false factual statements including but

not limited to the following:

"this person call (sic) me saying he is going to kill me, if you guys get FaceTimecall(sic) firom thisperson report him. it (sic)comes in my computer not in (s.ie)my phone. there (sic)no way to Blockhim for some reason, " . "Ctell.cmlO-^^.pmail ROTTi The Police just left my house I call (sic) the police inVirgmia, he Uyes here 3919 GrovewoodRd Hopewell,Virginia and his numberits (sic) 804 7283919"

64. The foregoingstatement on thp Timelinepost is false.

65. Plaintiffnever told Defendant Davila that Plaintiffis going tokill Defendant Dayila.

66.Plaintiff doesnot live at 3919 Grovewood Rd., Hopewell,Virginia.

67. Upon information and belief, the policenever visitedDefendantpavila's house on

December 29,2014.

68. The Defendants' statements to social media users falsely impute that Plaintiffthreatened

to kill Defendant Davila.


69. The Defendants' statements tosocial media users falsely impute thatPlaintiffis athreat

to otherindividuals and,^ven the chance. Plaintiffwould harassand/or threaten other

individuals, asimplied in thestatement, "ifyou guys getFaceTime call (sic) from this

person report him."

70. The Defendants' statements- tothe social media users onFacebook and Twitter falsely

impute that Plaintiffwas under investigation fora criminal actand/or police misconduct.

71. TheDefendants' statements to thesocial media users onFacebook andTwitter falsely

impute thatPlaintiffis unfit to'perform his duties and/orwork in his trade or profession

asa police officer for theRichmond Police Department.

Defendant Pavila's Statements to Richmond Police Department and FBI

72. Upon information and belief, on orabout December 29,2014, the Defendants published

statements to theRichmond.Police Dqjartment andto theFe'deral Bureau ofInvestigation

(FBI) that, in haec yerha^ Plaintiffthreatened to kill Defendant Davila.

73.*'Upon information andbelief, on orabout December 29,2014,theDefendanfe published

statements to the RichmondPolice Departmentand to the FBI, containinginformation• • ,r

that they knew or shouldhave knowncontainedfalse and defamatory stateraentsof fapt

of or conceming Plaintiffcausing damage to plaintiffand to his reputation. ' "..

74. Upon information and belief, the statements of the Defendants-werefalse and the

statements make substantial dangerto the Plaintiffs reputationapparent.

75. Upon information, the Defendants made the statements knowing them to be false or

believing it to be true, the Defendants lacked reasonable grounds for suchbeliefox acted

negligently in failing to ascertain the facts on which the stetement was based,,when

Plaintiffapologized" to DefendantDavila onmultiple occasions for the inadvertent call

10


(viatelephone, via FaceTime, viatextmessage) explaining thatPlaintiffwastryingto

reachhis friend, when Plaintiffnever toldDefendant Davila he was going to kill

Defendant Davila, when Plaintiffinformed Defendant Davila thatPlaintiffis apolice

officer.

76.TheDefendants' statements to Richmond PoliceDepartment andto the FBI falsely

impute that Plaintiffthreatened to kill Defendant Davila.

77.TheDefendants' statements to Richmond PoliceDepartment, to theFBI, and to the social

mediausers onFacebook andTwitter falsely impute thatPlaintiffis imfitto perform his

duties and/or workin his trade,or profession as a policeofficerfor the Richmond Police

Department.

78.TheDefendants' statements to Richmond PoliceDepartment, to the FBI, andto the social

media users on Facebook and Twitter damaged Plaintiffs reputation and caused Plaintiff

to suffer damages.

Malice

79. ITbie Defendants' statements to the social media users on Facebook and Twitter were

madeto andheardby thosewho didnot have the dutyor authority to receivethe

information and were accompanied by malice.

80.TheDefendants' conduct alleged hereinwas doneknowingly, willfullyj intentionally,

sadisticallyand without lawfuljustification, so as to amount to a wanton and will&l

disregard oftheplaintiff's ri^ts, as theDefendants, interalia,knew and/or acted with

reckless disregard to the fact that Plaintiffdid not threaten to kill Defendant Davila' and

that Plaintiffwas not xinder investigation for misconduct.

81.The conductcomplained of herein (including the defamatory statements) was done

intentionally, puiposefuHy and without lawfuljustification, with full knowledge ofthe

11


falsity ofthe statements, and/orwith reckless and willful disregardforthe truth orfalsity

of the statements and ahi^ degree of awareness that thestatements were probably false,

when Plaintiffapologized to Defendant Davila onmultiple occasions for theinadvertent

call (via telephone, via FaceTime, viatext message) explainifig that Plaintiffwas trying

to reach hisfriend, when Plaintiffnever toldDefendant Davila hewasgoing to kill

*' Defendant Davila, whenPlaintiffinformed Defendant Davila thatPlaintiffis a police

officer.

82. Alternatively, theDefendants lacked reasonable grounds formaking thestatements,

implications, and insinuations complained of herein, andfailed to actas a reasonably

prudentpersonin investigating the truth of the statements made, actingwith what amount

to simple orevengross negligence in publishing thestatements, whenPlmnte

apologizedto DefendantDavila on multiple occasionsfor the inadvertentcall (via

telephone, via FaceTirne, via text message) explainingthat Plaintiffwas trying to reach,

hisfriend, wh^ Plaintiffnever told.Defendant Davila hie was going-to killDefendknt.

Davila, when Plaintiffinformed Defendant Davila that Plaintiff is apoiice djî'cef.

83/Ifsubject toa qualified privilege, theDefendants abused anysuchprivilege, in that (a)

theDefendants knew the statements were false ormade it with reckless disregard of

wiiether itwas false ornot; or (b) thestatements were deliberately made insuch a way

tihat theywereheard bypersons having nointerest or duty in the subject of the statdiient,

in particular, to the socialmediaiisers; or (c) the statements wereunnecessarily insulting;

or (d) the language usedwas stronger or moreviolentthanwasnecessary underthe

circumstances, particularly, whentheDefendants disclosed PlaintifTs personal

identifying information; or (e) the statements weremadebecause of hatred, ill wU, or a

dpsire to hurt the plaintiffratherthan as a fair comment on th'e subject; or (f) the

12 . .


statements were made because ofpersonal spite, orillwill, independent ofliie occasion

on which the communication was made.

84. The Defendants apted with malice.

Damages

85. Plaintiffwas injured inhis personal reputation and professional reputation byreason of

theconduct of theDefendants described herein. These damages include butarenot

limited tolostincome, insult to him including pain, embarrassment, humiliation and

mental suffering, injury tohis reputation, and actual out-of-pocket losses that were

caused by the statements and conductofthe Defendants.

86. As a result ofthe Defend^ts' actions, theimpact toplaintiff.was so severe thathis

employer, uponlearning ofthe statements andactions of theDefendants, placed Plaintiff

•' on administrative leave andstripped himof overtime pay, andPlaintiifhas suffered and

will sufferphysical, mental^ economic, andemotional injuries.

COUNT 1 - Defamation - The Twitter Post^

87. Theallegations in thiscomplaint, 1-86, areincorporated herebyreference.

88.OnDecember 29,2014,the Defendants published factually false anddefamatory

statements and statements with factually false insinuations, about Plaintiff tottod parties

without privilege (orinabuse thereof,), justification, or excuse onDefendant Company's

Twitter account, @Xxxbiaggi. '

Here^ the statements published by the Defendants aredefamatory and also aredefaniatory perse,In Vjrgln|a,'defamation perseconsist ofstatements that are "(1) Those which impute to a person the commission ofsomecriminal offense involving moral turpitude, forwhich the party, ifthe charge Is trye,may be indicted and.punished.(2) Those which impute that a person is'mfected with some contagious-disease, where ifthe charge istrue," itwould excludethe party from society.(3)Thosewhich impute to a person unfltness to perform the duties of anoffice or employment of profit, or want of integrity in the discharge of the duties of sUch an office oremployment, Those which prejudice suchperson in hi's or herprofession ortrade. All otherdefamatory wordswhich, though not inthemselves actionable, occasion a person special dainages are actionable." t^leming v. iVloore.221 Va. 884,889 (1981).

'13


89. The Defendants published such statements intentionally and maliciously, knowinghis

insinuations were fectually false or with reckless disregard for the truth.

90.The Defendants' conduct complained of hereindirectly andproximately causedPlaintiff

damages, as alleged herein.

91.Plaintiffis entitledto presumed damages becauseinter alia the statements impiite that

Plaintiff is unfit to performhis duties,and whichprejudicehim in his profession.

92. The jury may also award punitive damages, based on the foregoing.

93.''The Defendants are liable toplaintifffor defamation.

COUNT 2 - Defamation — The Facebook Post

94. The allegations in this complaint, 1-86 are incoiporated here by reference.

95. On December 29,2014, the Defendants published factually false and defamatory

statements and statements with factuallyfelse insinuations, aboutPlaintiff to third parties

withoutprivilege (or in abuse thereof,), justification, or excuse on Defendant Company's

Facebook account under the name Antonio Biaggi Davila.

96. TheDefendants published such"statements intentionally andmaliciously, knowing his

insinuations were factually felse orwith reckless disregard forIhe truth.

97. The Defendants' conductcomplamed ofherein directlyand-iiroximately caused pl^tiff

•'damages, as alleged herein; .

98.Plaintiffis entitled,to presumed damages because inter alia the statements imputethat

Plaintiff is unfit to perform his duties, and whichprejudicehim in his profession.

99. The jury may also awardpunitive damages, based on the foregoing.

100. TheDefend^ts are liableto plaintifffor defemation.

COUNT 3 - Defamation — The Timeline Post

101. The allegations in this complaint, 1-86 are incoiporated-here by reference.

14 •


102. OnDecember 29,2014,.the Defendants published factually false and defamatory

statements andstatements withfactually false insinuations, about Plaintiffto thirdparties

without privilege (or inabuse thereof,), justification, orexcuse onDefendant Company's

'Facebook account nnder thename Antonio Biaggj Davila.

103. The Defendants published such statements intentionally andmaliciously, knowing

his insinuations were factually false or withreckless disregard forthe truth.

104. TheDefendants' condiict complained ofherein directly andproximately caused

Plaintiffdamages, as allegedherein.

105. Plaintiff is entitled to presumed damages because interalia thestatements impute

that Plaintiffis imfitto perform his duties, andwhichprejudice him in hisprofession.

106. Thejury mayalso awardpunitive damages, based on the foregoing.

107... The Defendants ateliable toplaintifffor defamation.*

COUNT 4 - Defamation - Statements to Richmond Police Department

108. Theallegations in this complaint, 1-86areincorporated here by reference.

109. On orabout December 29,2014, the Defendants published factually false'^S'.'

defamatory statements andstatements withfectually false insinuations, about Plaintiffto

third parties \wthout privilege (orin abuse thereof,), justification, or excuse tothe:

RichmondPolice Department.

110. TheDefendants published such statements intentionally andmalicioiisly, knowng

his insinuations werefectually fê or withreckless disregard for the truth.

111. TheDefendants' conduct complained ofherein directly andproximately caused

Plaintiff damages, as alleged hdrein."

112. Plaintiff is entitled to presumed damages because interalia thestatements impute

"that Plaintiffis unfitto perform his duties, andwhichprejudice himin his profession.

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113. Thejury mayalsoawardpimitive damages, basedon the foregoing.

114. The Defendants are liable to plaintifffor defamation.

COUNT 6 - Defamation - Statements to the FBI

115. The allegations in thiscomplaint, 1-86 ê incoiporated herebyreference.

116. On or aboutDecember29,2014, the Defendantspublishedfactuallyfalse and

defamatory statements andstatements withfactually false insinuations, about Plaintiffto

thirdparties without privilege (orin abuse thereof,), justification, or excuse to theFederal

Bureau ofInvestigation .

117. TheDefendants published such statements intentionaUy andmaliciously, knowing

his insinuations werefactually falseor with recklessdisregard for the truth.

118. TheDefendants* conduct complained ofherein directly andproximately caused

Plaintiffdamages, as allegedherein.

.119. Plaintiff is entitled to presumed damages becameinteralia the statements impute

that Plaintiffis unfit toperform his duties, andwhichprejudice him in his profession.

120.. Thejury mayalso award punitive damages, based on theforegomg.

121. The Defendantsare liable to plaintiff for defamation.

COUNT 7 - Negligent Defamation- The Twitter Post ^ •

122. Theallegations iii this complaint contained inparagraphs 1-86, areincoiporated

here by reference. ' . •• • .

123. TheDefendants published factually false anddefamatory stateniente and

statements with factually false insinuations, about Plaintiff to third parties \wthout " "

privilege (or in abuse thereof)Justification, or excuse.

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124. TheDefendants published suchstatements negligently, lacldnga reasonable basis

forbelieving thetruthofthe allegations, andfailing to actas a reasonably prudent person

would to ascertain the truthof the allegations, withreckless disregard for thetruth.

125.TheDefendants' conduct directly andproximately caused plaintiffdamages, as

.alleged herein. . _

126. Plaintiffis entitled topresumed damages, because inter aliathestatements hnpute,

thatplaintiffisunfit toperform hisduties, and/or prejudice Plaintiffinhisprofession.

127. TheDefendants are liable to plaintifffordefemation.

COUNT 8 - Negligent Defamation - The Facebook Post

128. Theallegations in this complaint contained inparagraphs 1-86, and 122-127 are

incoiporated here by reference.

COUNT 9 - Negligent Defamation - The Timeline Post ," . . . '

129. Theallegations in this complaint contained inparagraphs 1-86,and 122-127 are

incoiporatedhere by reference:

COUNT 10 - Unauthorized Use ofName and Pictare in Trade

130. The allegations inthis complaint contained inparagraphs 1-86 are incoiporated

here by reference.

131. TheDefendants usedtheplaintiff's name and likeness inviolation of Code §

8.01-40.

132. Plaintiffdid notconsent, whether inwriting or otherwise, to have hisname and

likeness published ontheDefendant Company's social media accounts, which areused to

solicit andgenerate business by iheDefendants forthe Defendant Company andwhich

are seen all over the United States and around the world.

17. •


133. Defendants violatedVa. Code§ 8.01-40, wliichstates: "Anypersonwhosename,

portrait, or picture,is used without having first obtained the written consent ofsuch

person... for advertising puiposesor for the puiposes of trade, suchpersonsmay

maintain a suit in equity against theperson, firm, or corporation sousingsuchperson's

name, portrait, or pictureto preventand restrainthe use thereof; and may also sue and

recover d9mages for any injuries sustainedby reason ofsuchuse. And ifthe defendant

shall knowingly usesuch person's name, portrait orpicture in such manner as is

forbidden or declared to beunlawful"by this chapter, thejury, inits discretion, mayaward

exemplary damages."

134. TheTwitter Post, theFacebook Post, andtheTimeline Postpublished bythe

•* Defendants werepredomiiiately foruse in tradeand/oradvertisiiig as theywere, inter

alia, postedonDefendant Company's social mediaaccounts including Twitter and

Facebook'by theDefendants.

135. TheTwitterPost,theEacebook Post, andtheTimeline Postpixblished by the' •'

Defendants were posted,- interalia, for thepurpose ofgarnering attention andsympathy

from fans, for thepurpose ofpromoting Defendant Company's trade, forthepuipose of

soliciting business.

136. The Defendants knew that useofthe Plaintiff's name and picture forthe ptiiposes".

of trade and/or advertisingwas unlawful.

137. The Defendants knowingly used thePlaintiffs name and picture for thepurposes

•'oftrade and/or advertising'ia violation ofVa. Code § 8.01-40.

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ADDAMNUM

Wlierefore, Plaintiffrespectfully demands:

a. Judgmentjointly and severallyagainstDefendantDavila andDefendant

Company inthesum of$2,000,000.00 in compensatory damages;

b. Exemplary and pnnitive damages of$12,000,000 against theDefendants;

c. Costs, pre andpostjudênt interest;

d. Allfurther and additional relief as may beappropriate.

TRIAL BY JURY IS DEMANDED

Bret H. Mooney,Esq. VSB [email protected] H. Roberts & Associates; P.C.105 StreetRichmond, Virginia 23219(804) 78^-2000/(804) 783-2105 fax ;Counselfor Plaintiff

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Respectfully requested,CENTELL MCNEIL

Counsel


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