Opinion
04-CV-6047T.
September 12, 2005
REPORT RECOMMENDATION
PRELIMINARY STATEMENT
By order dated July 30, 2004, the above-captioned matter has been referred to the undersigned for the supervision of pre-trial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. § 636(b)(A) and (B). (Docket # 18). Plaintiff, Michael Sudore ("Sudore"), has filed suit against defendants SUM 41, Deryck Whibley, Steve Jocz, Dave Baksh, Jay McCaslin (the "SUM 41 defendants"), Greig Nori and Lucifer Productions (the "Nori defendants"), The Island Def Jam Music Group, a division of UMG Recordings, Inc., Universal Music Video Distribution Corp. (the "Universal defendants") and Aquarius Records. (Docket ## 1, 70, 72). Currently pending before this Court is Sudore's motion for leave to file an amended complaint to add a claim against all defendants for intentional infliction of emotional distress. (Docket # 40).
FACTUAL BACKGROUND
According to his Complaint, on April 6, 2002, Sudore attended a Rochester Red Wings baseball game at Frontier Field, as did the SUM 41 defendants, a rock band. During the game, the SUM 41 defendants allegedly approached Sudore, "taunted, jeered and heckled him" and threw a hot dog at him. This conduct prompted Sudore to "react spontaneously" and "yell at them in an effort to stop the . . . taunts, jeers and heckling." (Docket # 1, ¶¶ 52-53, 55). Sudore further asserts that the SUM 41 defendants filmed the incident without his knowledge or consent. (Docket # 1, ¶¶ 56-57). Over one year later, in July 2003, Sudore learned that defendants had incorporated the recording of the April 6, 2002 incident into a DVD, which was included as a promotional disk with SUM 41's music CD, "Does This Look Infected?," which defendants sold. (Docket # 1, ¶¶ 58-60). According to the Complaint, "[d]efendant's sole purpose of engaging in such conduct was to unilaterally enrich themselves at the expense of [p]laintiff and through the exploitive use of his image." (Docket # 1, ¶ 63).As originally filed, Sudore's Complaint alleged one legal claim, namely, that without Sudore's consent, defendants used his image for their pecuniary gain, and to his reputation's detriment, without providing him with just compensation, in violation of New York Civil Rights Law §§ 50 and 51. (Docket # 1). On November 30, 2004, Sudore moved for leave to amend his Complaint to include an additional claim for intentional infliction of emotional distress. (Docket # 40). Defendants oppose the motion on the grounds that the proposed claim is futile. (Docket # 51).
Plaintiff also moved to amend his Complaint to add certain defendants and factual allegations and to correct the names of certain originally-identified defendants. On the same date, the SUM 41 and Nori defendants moved to amend their Answer (Docket # 38), and Sudore thereafter cross-moved to preclude the SUM 41 and Nori defendants from introducing certain documentary evidence at trial. (Docket # 44). These motions were resolved in open court by the undersigned on February 10, 2005. (Docket ## 70, 72).
DISCUSSION
Rule 15(a) of the Federal Rules of Civil Procedure provides that once the time for amending a pleading as of right has expired, a party may request leave of the court to amend, which "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). If the underlying facts or circumstances relied upon by the party seeking leave to amend may be a proper subject of relief, the party should be afforded the opportunity to test the claim on its merits. See United States ex rel. Maritime Admin. v. Continental Illinois Nat. Bank and Trust Co. of Chicago, 889 F.2d 1248, 1254 (2d Cir. 1989). "In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962).
While the court retains discretion to grant or deny leave to amend under Rule 15(a), "[the] outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules." Id. at 182; Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993); Evans v. Syracuse City School Dist., 704 F.2d 44, 46 (2d Cir. 1983).
It is nonetheless well-settled that if the amendment proposed by the moving party is futile, "it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer Co., 987 F.2d at 131. The determination whether a proposed amendment is futile is made under the same standard as that used to consider whether a claim would be subject to a motion to dismiss. See Hampton Bays Connections, Inc. v. Duffy, 212 F.R.D. 119, 123 (E.D.N.Y. 2003) (citing A.V. By Versace, Inc. v. Gianni Versace, S.p.A., 160 F. Supp. 2d 657, 666 (S.D.N.Y. 2001)). Thus, the court "must view the claim in the light most favorable to the moving party and determine whether there is a colorable claim for relief." Santiago v. Steinhart, 1993 WL 410402, *2 (S.D.N.Y. 1993).
In the instant matter, Sudore seeks to add to his Complaint a claim that defendants, by using his image in the promotional video and selling such video, intentionally inflicted emotional distress on him. Defendants counter that Sudore's proposed amendment is futile because he has not alleged facts sufficient to establish a claim for intentional infliction of emotional distress and because such claim is barred by the statute of limitations. (Docket ## 51 and 58).
As an initial matter, because jurisdiction is premised on diversity of citizenship, this Court must apply federal procedural law and the substantive law of the state in which it sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Thus, the applicable substantive law in this case is that of the State of New York. See Schiavone Constr. Co. v. City of New York, 99 F.3d 546 (2d Cir. 1996).
To establish a claim for intentional infliction of emotional distress under New York law, a plaintiff must demonstrate: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." Howell v. New York Post Co., Inc., 81 N.Y. 2d 115, 121 (1993). These requirements are "rigorous and difficult to satisfy," a standard which recognizes that liability on such a claim is premised on "after-the-fact judgments about the actor's behavior" rather than conduct defined in advance to be proscribed. Id. at 122 (quoting Murphy v. American Home Prods. Corp., 58 N.Y. 2d 293, 303 (1983)). Moreover, when the claim arises during the course of business activities, the plaintiff must demonstrate that the defendant committed the outrageous act and that "the desire to cause plaintiff emotional distress was more than incidental to defendant's proper business motives." Waldron v. Ball Corp., 210 A.D. 2d 611, 613 (N.Y.App.Div. 1994) (quoting O'Rourke v. Pawling Sav. Bank, 80 A.D. 2d 847 (N.Y.App.Div. 1981)).
In the case at bar, Sudore's claim does not appear to be based upon the events at the baseball game, but rather upon the subsequent publication of the video recording of such events as part of a promotional DVD that was sold with defendants' music CD. That the claim is based on the publication of the video clip underscores the fact that, as Sudore himself alleges in his proposed Amended Complaint, the defendants' purportedly offensive conduct was commercial in nature and purpose. According to Sudore's Complaint, the SUM 41 defendants cultivated and marketed an image of themselves as a band that embraces and promotes disrespectful, outrageous and disdainful behavior. (Docket # 52, Ex. 1, ¶¶ 86, 87). To further that image, they and the other defendants made an "intentional commercial business decision" to include a promotional DVD with their music CD featuring outrageous conduct, including a twenty-four second clip of Sudore's reaction to the hot dog throwing incident. ( Id. ¶ 89).
A claim based upon the events at the ball game appears barred by the applicable one-year statute of limitations because the game took place on April 6, 2002 and the original Complaint, even if the proposed Amended Complaint could be said to relate back, was filed in February 2004. See N.Y. CPLR § 215(3).
Following oral argument, at this Court's request, the parties submitted a copy of the DVD, which has been reviewed. The DVD contains several distinct video tracks, one of which is entitled "Cross Your T's and Gouge Your I's." That video features approximately four and one-half minutes of footage of band members in concert, as well as engaging in conduct ranging from horseplay to pranks to lewd and vulgar acts (such as simulated sex acts). In the middle of the video track is a twenty-four second vignette of the band at a Rochester Red Wings game. During the clip, one of the band members, who is in an upper-deck sky box, yells, "a wiener for a wiener" and tosses a hot dog towards the fans sitting in the lower level spectator stands. Sudore is then shown yelling and cursing at the upper deck and being restrained by a security guard. After several seconds of footage of the band members in the stadium, Sudore is shown again, still yelling towards the upper-deck. Sudore's image appears in the video for approximately ten seconds out of the twenty-four second clip. The entire promotional video plays for slightly more than one hour.
Sudore's claim is unique in the following respect. Although he bases it on conduct undertaken by defendants for allegedly commercial purposes, those very purposes are, according to Sudore, to make money by featuring the SUM 41 band's involvement in and promotion of outrageous and offensive conduct. Were Sudore only required to demonstrate that defendants acted offensively and that such actions caused him emotional distress, then he would likely have a viable claim. However, Sudore is required to show that defendants' offensive conduct was done with the intent to cause him "severe" emotional harm, not that the harm was merely incidental to the commercially-driven conduct. See, e.g., O'Rourke v. Pawling Sav. Bank, 80 A.D.2d at 847; Costlow v. Cusimano, 34 A.D. 2d 196, 200 (N.Y.App.Div. 1970) (publishing photographs of plaintiff's children who suffocated in a refrigerator not actionable on theory of intentional infliction of emotional distress because actions motivated only by profit "albeit with disregard for the emotional distress occasioned by [defendant's] actions"). Even if this Court were to accept as true the facts alleged in Sudore's proposed Amended Complaint, the complaint does not sufficiently allege that severe emotional distress was the intended result of defendant's conduct, rather than incidental to defendants' business motive for filming and distributing the video clip.
In any event, I find that Sudore's claim fails for another reason, that is, his inability to establish that the conduct complained of was sufficiently extreme or outrageous so as to be "beyond all possible bounds of decency." See Howell v. New York Post Co., Inc., 81 N.Y.2d at 122. Indeed, it is generally the first of the five required elements — extreme and outrageous conduct — that filters out the frivolous complaints. See Howell, 81 N.Y.2d at 121. As the New York Court of Appeals has acknowledged, in evaluating claims of intentional infliction of emotional distress, "[c]ourts have tended to focus on the outrageousness element, [and have found it to be] the one most susceptible to determination as a matter of law." Id. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Id. at 122 (quoting Murphy v. American Home Prods. Corp., 58 N.Y. 2d at 303 (internal quotation omitted)). Indeed, every claim that has been considered by the New York Court of Appeals has failed because the conduct alleged has not been sufficiently outrageous. Id.
While the conduct is plainly lamentable, I find that throwing a hot dog into the public spectator stands at a baseball game and filming the spontaneous reaction of the individual contacted is no more outrageous than the conduct that other courts have found insufficient as a matter of law; nor do I find that the inclusion of a twenty-four second video clip of that public incident in an approximately sixty-five minute promotional video transforms otherwise non-outrageous conduct into outrageous conduct. See, e.g., Freihofer v. Hearst Corp., 65 N.Y. 2d 135, 143 (1985) (affirming dismissal of cause of action for intentional infliction of emotional distress, finding that violation of Domestic Relations Law by publishing court records did not constitute extreme and outrageous conduct); Fischer v. Maloney, 43 N.Y.2d 553, 557-58 (1978) (complaint failed to state cause of action for intentional infliction of emotional harm based upon defendants' alleged institution of civil lawsuit against plaintiff for the purpose of harassment and intimidation); see also Graham ex rel. Graham v. Guilderland Cent. School Dist., 256 A.D.2d 863, 863-64 (N.Y.App.Div. 1998) (affirming dismissal of intentional infliction cause of action, finding that use of racial epithet directed towards an African American student as part of a classroom discussion is not sufficiently outrageous); La Duke v. Lyons, 250 A.D.2d 969, 972-73 (N.Y.App.Div. 1998) (same, based upon false accusation of euthanasia against plaintiff resulting in her employment termination); Shea v. Cornell University, 192 A.D.2d 857, 858 (N.Y.App.Div. 1993) (same, based upon defendant's permitting sexually derisive comments to be made in workplace); Navarro v. Federal Paper Bd. Co., Inc., 185 A.D.2d 590, 593-94 (N.Y.App. Div. 1992) (complaint failed to state claim for intentional infliction of emotional distress based upon arrest of union official in front of his fellow workers); Smith v. Long Island Jewish-Hillside Med. Ctr., 118 A.D. 2d 553, 555 (N.Y.App.Div. 1986) (complaint failed to state cause of action for intentional infliction of emotional distress based upon hospital's disclosure of information concerning, and publication for advertising purposes of photograph of, plaintiff's child who had died from leukemia); Carpenter v. City of Plattsburgh, 105 A.D.2d 295, 299-300 (N.Y.App.Div. 1985) (complaint failed to state claim for intentional infliction of emotional distress based upon disclosure of police officer's personnel records), aff'd, 66 N.Y. 2d 791 (1985); De Gregorio v. CBS, Inc., 123 Misc. 2d 491, 496 (N.Y.Sup.Ct. 1984) (no cause of action for intentional infliction of emotional distress based upon broadcast of film of unnamed couples engaging in romantic conduct on public street).
Of course, this determination has no bearing on the merits of plaintiff's pending claim under New York Civil Rights Law §§ 50 and 51.
Having found that Sudore has failed to satisfy the requirements for pleading a claim for intentional infliction of emotional distress, it is unnecessary to address defendants' argument that the claim is barred by the statue of limitations. Accordingly, it is my recommendation that Sudore's motion be denied.
CONCLUSION
For the foregoing reasons, it is my recommendation that Sudore's motion to amend his Complaint to add a claim for intentional infliction of emotional distress (Docket # 40) be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), it is herebyORDERED, that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b), 6(a) and 6(e) and Local Rule 72.3(a)(3).
The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See e.g. Patterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
IT IS SO ORDERED.