Opinion
03 C 5076
December 3, 2003
MOTION
On October 15, 2003, plaintiff Jane Doe filet) a four-count amended complaint against defendants Ed Templeton ("Templeton") and Turn Yeto, Inc. d/b/a Toy Machine Bloodsucking Skateboard Co. ("Turn Veto") alleging violations of the Illinois Right of Publicity Act, invasion of privacy by giving publicity to private life, intentional infliction of emotional distress ("UED"), and negligence. On November 5, 2003, Turn Veto moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss counts II, III, and IV of plaintiff's amended complaint. For the reasons explained below, Turn Veto's motion is denied.
In considering the merits of a motion made pursuant to Rule 12(b)(6), the well-pled allegations of the complaint must be accepted as true.Thompson v. Illinois Don't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). In addition, all ambiguities will be construed in favor of the non-moving party, Id. A court generally should dismiss a complaint only where it is clear that no relief could be granted consistent with the allegations. Hishon v. King Spaulding, 467 U.S. 69, 73 (1984). Further, the Rules do not require a plaintiff to plead facts in order to survives. 12(b)(6) motion to dismiss; a complaint may be conclusory. See Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). Rule 8(a) states that a complaint must identify the basis of jurisdiction and contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1077-78 (7th Cir. 1992). Complaints can be "short and simple, giving the adversary notice while leaving the rest to further documents." Id. at 1078.
Contrary to Turn Yeto's arguments, plaintiffs claim in count II is not one of false light but rather of publicity given to private life, "One who gives publicity to a mailer concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public."Villalovos v. Sundance Assocs., Inc., No. 01 C 8468, 2003 WL 115243, at *3 (N.D. Ill. Jan. 13, 2003) (quoting Restatement (Second) of Torts § 652D (1977)). In the case at hand, plaintiff has alleged that the use of the advertisement and resulting publicity is highly offensive to a reasonable person and that there was no legitimate public concern for Turn Veto to publish the ad. (Am. Compl. ¶¶ 22-23.) Clearly, plaintiffs sexual orientation is a matter concerning her private life. In addition, although the ad does not do so explicitly, plaintiff alleges that it portrayed her as gay. (Am. Compl. ¶¶ 11, 21.) Further, this court can envision a set of facts under which plaintiff could prove, as plaintiff argues, that the actual intended message of the ad was to "be gay in a happy way, not a sexual one like the two women in the ad." Such conduct of putting plaintiffs sexual orientation in the public light could be highly offensive to a reasonable person. The cases to which Turn Yeto cites in its memoranda are distinguishable from the case at hand, and plaintiff herself was not the source of the public dissemination of private facts. Consequently, plaintiff states a claim in count II.
In count III, plaintiff has alleged each element of an IIED claim. (Am. Compl, ¶¶ 26-28.) Contrary to Turn Veto's arguments, Rule 9(b) does not apply to plaintiffs IIED claim. In addition, plaintiff has alleged more than mere insults, threats, or annoyances. Basically, plaintiff alleges that Turn Veto intentionally and surreptitiously photographed her and another woman and then highlighted plaintiffs sexuality in a national magazine causing plaintiff severe emotional distress. A factfinder could find such conduct to be extreme, outrageous, and beyond all bounds of decency. At this stage, plaintiffs allegations meet the threshold requirement of pleading outrageousness, intent or recklessness, and severe emotional distress. Accordingly, count III remains.
Finally, in her response to Turn Yeto's motion to dismiss, plaintiff makes clear that she is not alleging a claim for negligent infliction of emotional distress; rather, she raises a traditional negligence claim and has alleged a duty, breach, causation, and damages. (Am. Compl. ¶¶ 30-32.) The issue is whether Turn Yeto had a duty not to use plaintiffs picture for commercial gain. Although, as far as this court can tell, the Illinois Supreme Court has not held that a violation of the Right of Publicity Act creates such a duty, and although the parties have not addressed this issue in any detail, this court believes, at least at this stage such that this claim should remain, that the Illinois Supreme Court could find such a duly, The parties should explore this issue more fully at the summary judgment stage. Thus, Turn Yeto's motion to dismiss count IV is denied.
Ultimately, plaintiff will have to produce evidence to support her claims. However, now, all she has to do is plead the claims. Under the liberal notice pleading standards of the federal courts, plaintiff has sufficiently alleged claims in counts II, III, and IV.
Therefore, defendant Turn Yeto's motion to dismiss is denied. Turn Yeto is ordered to file an answer to counts 11,111, and IV of plaintiff s amended complaint no later than December 17, 2003. All previously set dales stand. The parties are urged to discuss settlement.