Comolli v. Huntington Learning Centers, Inc.
Comolli v. Huntington Learning Centers, Inc.
Opinion of the Court
I. INTRODUCTION
Plaintiffs Dina Ann .Comolli, Christine Holliday, and Sandra 'Williams bring this action seeking both damages'and injunc-tive relief from defendants Huntington Learning Centers, Inc. (“Huntington Centers”), Huntington Learning Corporation; Huntington' Mark, LLC, and Huntington Advertising Fund, Inc. (collectively “Huntington”). . Plaintiffs assert causes of action for invasion of - privacy and fraudulent inducement. Huntington now moves to-dismiss all claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set-forth below, Huntington’s motion is GRANTED in part and DENIED in part.
II, BACKGROUND
A. Facts
Plaintiffs are three professional actors, all residing in New York.
In late 2013, plaintiffs tried to obtain copies of-their releases.
After discovering that the Commercial was still airing in May 2014, plaintiffs renewed their efforts to-obtain copies of the releases.
The Commercial is still airing in New York and multiple other markets • across the country.
Plaintiffs seek' damages and injunctive relief from all defendants for airing the Commercial without plaintiffs’ consent.
B. Procedural History
Plaintiffs originally filed suit in the Supreme Court of the State of New York, County of New York.
III. LEGAL STANDARD
A. Motion to Dismiss Under Rule 12(b)(6)
. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the.court must “aecept[] all factual allegations in the complaint as true and draw[ ] all reasonable inferences in the plaintiff’s favor.”
When deciding a motion to dismiss, “a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.”
B. Leave to Amend
Federal Rule of Civil Procedure 15(a)(2) provides that, other than amendments as a matter of course, “a party may amend [its pleading] only by leave of court or by written consent of the adverse party.”
IV. APPLICABLE LAW
A. Invasion of Privacy
Section 50 of New York Civil Rights Law forbids the “use[ ] for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person....”
Under New York law, the statute of limitations begins to run when a claim accrues.
B. Fraudulent Inducement
The elements of a fraud claim are: “(1) a material misrepresentation or omission of fact (2) made by defendant with knowledge of its falsity (3) and intent to defraud; (4) reasonable reliance on the part of the plaintiff; and (5) resulting damage to the plaintiff.”
Y. DISCUSSION
A. The Section 51 Claim
1. Statute of Limitations
Huntington argues that under the single publication rule, plaintiffs’ Section 51 claim accrued when the Commercial was first broadcast in 2012.
Huntington’s argument misconstrues the controlling precedent. Huntington cites to a “long string of New York, cases” as support for the contention that plaintiffs’ Section 51 claim accrued upon the first broadcast of the Commercial in 2012.
For example, in Cuccioli v. Jekyll & Hyde Nene Metropol Bremen Theater Produktion GmbH & Co., an American actor asserted a Section 51 claim against a Gennan company for selling CDs containing the actor’s image.
Here, in contrast, plaintiffs readily admit that they consented to Huntington airing the Commercial in 2012.
Moreover, even if plaintiffs’ Section 51 claim accrued upon the first broad
2. Publications Outside of New York
' Huntington also seeks dismissal of plaintiffs’ claims 'arising from broadcasts' outside of New York.
Huntington relies on a single federal district court decision in support of dismissal.
Moreover, there is reason to doubt whether the Cucdoli court’s interpretation of Section 51 would still .be adopted by New York courts. A federal court sitting in diversity and interpreting state law must “ ‘predict how the forum state’s high
Section 577A(4) of the Restatement provides that “[a]s to any single publication, (a) only one action for damages can be maintained [and] (b) all damages suffered in all jurisdictions can be recovered in the one action_” In Firth v. State, the New York Court of Appeals cited the Restatement favorably, noting that “[t]he single publication rule ... allow[s] the collection of all damages in one case commenced in a single jurisdiction.”
Further, the Court of Appeals explained that the purpose of the single publication rule is to prevent “a multiplicity of actions, leading to potential harassment and excessive liability, and draining of judicial resources.”
B. Fraudulent Inducement
The Complaint states that Huntington Centers fraudulently induced plaintiffs to “forego asserting their legal rights with respect to the Commercial,” as plaintiffs would have filed suit on their Section 51
To begin, if the Section 51 action is not time-barred (as I concluded in my earlier discussion) there can be no claim for fraudulent inducement, as no damages flowed to plaintiffs from their delay in filing suit at an earlier date. If, however, it turns out following discovery of the releases that the actions are indeed time-barred, then the question of whether an independent action for fraudulent inducement to delay filing the lawsuit can be raised.
While I just noted that the New York Court of Appeals has not squarely addressed the issue, it alluded to it in dicta in Brick v. Cohn-Hall-Marx Co.
If there were fraud extraneous to the contract, lulling the plaintiffs into' the belief that the money had been paid or would be paid, a different situation might arise. The plaintiffs in such a case would have a cause of action for the damages caused by the fraud in inducing them to let the statute of limitations arise. For instance, if before the statute expired the defendant had assured the plaintiffs that it had already sent a check or had paid, and the plaintiffs, relying upon such assurance, let the time elapse in which suit could be brought, we would then have an instance of extraneous fraud not in any way growing out of the contract. Such is not the case.88
The real problem is that if the Court’s analysis of the republication rule is flawed, then the action was likely time-barred long before the alleged misrepresentation. The releases were signed in December 2011. Plaintiffs admit that they agreed that the Commercial could be aired for one year— i.e., through late 2012 or early 2013 (depending when it was first aired). Any publication after that would have caused an invasion of privacy—the claim that plaintiffs now.assert. But this claim, as noted above, carries a one-year statute of limitations. Thus, any claim brought after 2014 would be time-barred. This action was filed on January 20, 2015. Thus, if my earlier ruling is erroneous, then the claim was time-barred well before the alleged misrepresentation.
If it turns out in the course of discovery that the releases allowed the Commercial to air for two years, rather than the one year that plaintiffs seem to remember, then the unauthorized airing of the Commercial may not have happened until early 2014. In that event, the alleged misrepresentation may indeed have caused the plaintiffs to miss the one-year window in which to timely bring suit: In that event, plaintiffs can assert a defense of equitable estoppel based on defendants’ alleged misrepresentation.
Plaintiffs’ fraudulent inducement claim is therefore dismissed without leave to re-plead.
VI. CONCLUSION
For the foregoing reasons, Huntington’s motion to dismiss is GRANTED as to plaintiffs’ fraudulent inducement claim and DENIED as to plaintiffs’ claim for inva
SO ORDERED.
. The facts below are drawn from the First Amended Complaint ("Compl.’').
. See id. ¶¶ 5-7.
. See id. ¶ 14.
. See id. ¶ 16.
. See id. ¶¶ 16, 18.
. See id. ¶¶ 16, 18-21.
. See id. ¶¶ 18-20.
.' See id. ¶¶ 19-20.
. See id. ¶ 21.
. See id. ¶ 22.
. See idA 23..
. See id. ¶ 24.
. See id. ¶¶ 25, 27-29. ■ :
. See id. ¶ 31.
. See id.
. See id.
. See id. ¶¶ 33-39.
. See id. ¶¶ 40-44.
. See id. ¶ 29.
. See id. ¶ 26.
. See id. ¶¶ 8, 26.
. See Notice of Removal to United States District Court From New York State Court, New York County, Index No. 150604/2015 ("Notice of Removal”) ¶ 1.
. See id. ¶ 2.
. Grant v. County of Erie, 542 Fed.Appx. 21, 23 (2d Cir. 2013).
. See 556 U.S. 662, 678-79, 129 S.Ct, 1937, 173 L.Ed.2d 868 (2009).
. Id. at 679, 129 S.Ct. 1937.
. Id. at 678, 129 S.Ct. 1937 (citation omitted),
. Id. at 679, 129 S.Ct. 1937.
. Id. at 678, 129 S.Ct. 1937 (citation omitted).
. Id. (quotation marks omitted).
. DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
. Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)).
. Id. (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)).
. Slayton v. American Express Co., 460 F.3d 215, 226 n. 10 (2d Cir. 2006) (citation and quotation marks omitted).
. Fed.R.Civ.P. 15(a)(2).
. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (citation omitted).
. Schindler v. French, 232 Fed.Appx. 17, 19 (2d Cir. 2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)).
. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
. N.Y. Civ. Rights Law § 50.
. See id. § 51.
. Molina v. Phoenix Sound, Inc,, 297 A.D.2d 595, 747 N.Y.S.2d 227, 230 (1st Dep't 2002).
. See Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985 (1993).
. Cuccioli v. Jekyll & Hyde Neue Metropol Bremen Theater Produktion GmbH & Co., 150 F.Supp.2d 566, 572-73 (S.D.N.Y. 2001).
. Nussenzweig v. diCorcia, 9 N.Y.3d 184, 188, 848 N.Y.S.2d 7, 878 N.E.2d 589 (2007) (citing Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119, 125-26, 81 N.E.2d 45 (1948)).
. See N.Y. Civil Practice Law & Rules ("CPLR") § 215(3).
. See Rinaldi v. Viking Penguin, Inc., 52 N.Y.2d 422, 434-35, 438 N.Y.S.2d 496, 420 N.E.2d 377 (1981).
. Firth v. State, 98 N.Y.2d 365, 371, 747 N.Y.S.2d 69, 775 N.E.2d 463 (2002) (quoting Rinaldi, 52 N.Y.2d at 435, 438 N.Y.S.2d 496, 420 N.E.2d 377).
. Hoesten v. Best, 34 A.D.3d 143, 821 N.Y.S.2d 40, 46 (1st Dep't 2006) (quotation marks and citations omitted).
. Id. (quoting Firth, 98 N.Y.2d at 371, 747 N.Y.S.2d 69, 775 N.E.2d 463).
. Crigger v. Fahnestock & Co., 443 F.3d 230, 234 (2d Cir. 2006). Accord Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 (2009) ("The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.”).
. See Urstadt Biddle Props., Inc. v. Excelsior Realty Corp., 65 A.D.3d 1135, 885 N.Y.S.2d 510, 512 (2d Dep't 2009) (citations omitted) ("The elements of a cause of action alleging fraud in the inducement are representation of a material existing fact, falsity, scienter, reliance, and injury").
. Seé Defendants’ Memorandum of Law in Support of Motion to Dismiss (“Def. Mem.”) at 8.
. See id. at 5-8.
. See id. at 6-8. •
. See 150 F.Supp.2d at 568.
. Id.
. See Compl. ¶¶ 16, 18-21.
. See Welch v. Mr. Christmas Inc., 57 N.Y.2d 143, 148, 454 N.Y.S.2d 971, 440 N.E.2d 1317 (1982) (citations omitted) ("The right tq withhold consent to a use includes the right to limit the period within which the consent remains in effect. Within the meaning and purpose of [Section 51], use after expiration of the effective period of consent is no less an invasion of privacy than is use withput consent.”).
. See Compl. ¶¶ 16, 18, 29-30.
. Stephano v. News Grp. Publ’ns Inc., 64 N.Y.2d 174, 183, 485 N.Y.S.2d 220, 474 N.E.2d 580 (1984) (citing Welch, 57 N.Y.2d 143, 454 N.Y.S.2d 971, 440 N.E.2d 1317).
. Huntington attaches to their moving pa- ' pers what appears to be Holliday’s signed release. See 12/1/11 Personal Release, Ex, 2 to 3/23/15 Declaration of Thomas O. Johnston, Esq. in Support of Motion to Dismiss Plaintiffs’ Amended Complaint ("Johnston Deck”). While a court may consider a document extraneous to the complaint in deciding a motion to dismiss, before such a document becomes the basis of dismissal it must be clear that “ ‘no dispute exists regarding the authenticity or accuracy of the document.’ ” DiFolco, 622 F.3d at 111 (quoting Faulkner, 463 F.3d at 134). Because plaintiffs dispute the authenticity of this release (which in any event only applies to one of the plaintiffs), it is inappropriate to consider it at this time. See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss Amended Complaint ("Opp. Mem.”) at 1 n. 1.
. See Compl. ¶ 31.
. See Defendants’ Memorandum of Law in Further Support of Motion to Dismiss Amended Complaint ("Reply Mem.”) at 3-4. See also supra notes 36-37 and accompanying text.
. Hoesten, 821 N.Y.S.2d at 46 (quotation marks omitted).
. See, e.g., Rinaldi, 52 N.Y.2d at 434-35, 438 N.Y.S.2d 496, 420 N.E.2d 377.
. See Def. Mem. at 10-11.
. See Compl. ¶¶18, 22, 30-31.
. See id. ¶¶ 30, 34, 36-38.
. See Def. Mem. at 11.
. See 150 F.Supp.2d at 575.
. See id. at 576 ("The only suggestion that the [materials were] promoted in New York ... is plaintiff’s unsupported assertion that there was a hyperlink from the New York production’s web site to defendant's web site.”). A subsequent federal district court decision reached a similar conclusion regarding Séction 51, but that case also involved exclusively out-of-state violations. See Pearce v. Manhattan Ensemble Theater, Inc., No. 06 Civ. 1535, 2009 WL 3152127, at *9 (S.D.N.Y. Sept. 30, 2009) (”[T]he only use of plaintiff’s name or image within New York was the creation of materials that were only intended
. Giuffre Hyundai, Ltd. v. Hyundai Motor America, 756 F.3d 204, 209 (2d Cir. 2014) (quoting DiBella v. Hopkins, 403 F.3d 102, 111 (2d Cir. 2005)).
. See Cuccioli, 150 F.Supp.2d at 575 n. 45.
. See Reilly v. Rapperswill Corp., 50 A.D.2d 342, 377 N.Y.S.2d 488 (1st Dep’t 1975); Rosemont Enters., Inc. v. Urban Sys., Inc., 42 A.D.2d 544, 345 N.Y.S.2d 17 (1st Dep't 1973). See also Restatement (Second) of Torts (1977) ("Restatement”).
. As the Second Circuit explained, a federal court sitting in diversity is “ ‘not strictly bound by state intermediate appellate courts,’ [but] will look to their decisions unless ‘convinced by other persuasive data that the highest court of the state would decide otherwise.’ ” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48 (2d Cir. 2013) (quoting West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct 179, 85 L.Ed. 139 (1940)).
. 98 N.Y.2d at 370, 747 N.Y.S.2d 69, 775 N.E.2d 463 (emphasis added) (citing Restatement § 577A cmt. d).
. Restatement ¶ 577A cmt. e.
. Firth, 98 N.Y.2d at 369-70, 747 N.Y.S.2d 69, 775 N.E.2d 463 (citing Keeton v. Hustler Mag., Inc., 465 U.S. 770, 777, 104 S.Ct. 1473,
. Compl. ¶¶ 42-43.
. Netto v. Rastegar, No. 12 Civ. 4580, 2012 WL 4336167, at *7 (S.D.N.Y. Sept. 20, 2012) (quoting 60A N.Y. Jur.2d Fraud and Deceit § 156 (2012)).
. See Dupuis v. Van Natten, 61 A.D.2d 293, 402 N.Y.S.2d 242, 243 (3d Dep’t 1978) ("Where failure to commence an action before the expiration of the [ ] statute of limitations is due to fraud practiced upon the plaintiff, a cause of action will lie for the loss sustained in consequence thereof.”). ’
. 276 N.Y. 259, 11 N.E.2d 902 (1937).
. See id. at 261-63, 11 N.E.2d 902.
. Id. at 264, 11 N.E.2d 902.
. See id. at 263-64, 11 N.E.2d 902.
. Id. at 264, 11 N.E.2d 902.
. Id.
. Plaintiffs have already laid the groundwork for raising, equitable estoppel at the proper time. See Opp. Mem. at 17-19. See also Dillman v. Combustion Eng’g, Inc., 784 F.2d 57, 61 (2d Cir. 1986) (citation and quotation marks omitted) ("[E]quitable estoppel is invoked in cases where the plaintiff knew of the existence of his cause of action but the defendant’s conduct caused him to delay bringing his lawsuit.”). In order to determine whether equitable estoppel applies, the court must evaluate plaintiffs’ contention that Huntington Centers’ misrepresentations lulled them into delaying filing suit in light of all of the circumstances. See Kavowras v. New York Times Co., 328 F.3d 50, 56-57 (2d Cir. 2003).
. See generally Thomas J. Griffin, Annotation, Fraud and Deceit: Liability in Damages for Preventing Bringing of Action Before Its Being Barred by Statute of Limitations, 33 A.L.R.3d 1077 (1970) (citing cases where courts have refused to recognize a cause of action for fraud resulting in the delayed enforcement of a legal remedy, but also noting that some courts have recognized such claims based on the particular facts presented).
Reference
- Full Case Name
- Dina Ann COMOLLI, Christine Holliday, and Sandra Williams v. HUNTINGTON LEARNING CENTERS, INC., Huntington Learning Corporation, Huntington Mark, LLC, and Huntington Advertising Fund, Inc.
- Cited By
- 4 cases
- Status
- Published