Opinion
01 Civ. 1339 (CSH) (JCF)
December 5, 2001
MEMORANDUM AND ORDER
The plaintiff in this action, Marika Zoll, alleges that her rights to privacy and publicity, as guaranteed by New York Civil Rights Law Sections 50 and 51, were violated by the rebroadcast of a commercial using her image. Ms. Zoll now moves pursuant to Rule 15 of the Federal Rules of Civil Procedure for leave to file an amended complaint to add 48 separate causes of action under the statutes and common law of 48 different jurisdictions. For the following reasons, the plaintiff's motion is denied.
Background
In 1978 and 1979, Ms. Zoll appeared in a television commercial for Jordache jeans, a product of Jordache Enterprises, Inc. ("Jordache"), a New York corporation. In the fall of 2000 and the beginning of 2001, Jordache rebroadcast the 1978 commercial, including Ms. Zoll's picture. According to the complaint, the plaintiff did not consent to the use of her image in the rebroadcasted commercial. Additionally, she alleges that Jordache increased sales of its jean product based on the rebroadcast of the television commercial, thus unjustly enriching itself at her expense.
Ms. Zoll filed her complaint on February 23, 2001, and amended it on April 9, 2001. Ms. Zoll now moves to amend her complaint again to add causes of action under the law of each state in which the commercial was aired. Jordache opposes the motion on the ground that the proposed amendment is futile.
Discussion A. Legal Standard for Amendment
A motion to amend is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which states that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); Parker v. Columbia Pictures Industries, 204 F.3d 326, 339 (2d Cir. 1000); Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990). A "motion to amend should be denied only for such reasons as undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party." Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987) (citation and quotations omitted). Notwithstanding the liberality of the general rule, whether to allow amendment is a decision that rests in the discretion of the district court, and for the proper reason, a court may deny permission to amend, in whole or in part. Krumme v. West Point Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998); H.L. Hayden Co. v. Siemens Medical Systems, Inc., 112 F.R.D. 417, 419 (S.D.N.Y. 1986).
Here, Jordache opposes the amendment exclusively on grounds of futility, arguing that a broadcast gives rise to only one cause of action for violation of privacy or publicity rights, not a separate claim in each jurisdiction where the broadcast was aired. An amendment that would be futile because it is legally frivolous may be rejected. See Mackensworth v. S.S. American Merchant, 28 F.3d 246, 251-52 (2d Cir. 1994); Kaster v. Modification Systems, Inc., 731 F.2d 1014, 1018 (2d Cir. 1984); Manhattan Life Insurance Co. v. A.J. Stratton Syndicate (No. 782), 132 F.R.D. 139, 141 (S.D.N Y 1990). If amending the complaint would be futile because, for example, the amendment would not survive a motion to dismiss, then leave to amend should be denied. See Azurite Corp. v. Amster Co., 52 F.3d 15, 19 (2d Cir. 1995).
B. Choice of Law
To the extent that the viability of the plaintiff's proposed claims turns on substantive legal principles, it must first be determined what law applies. Although Ms. Zoll pled her claims under New York law, it does not necessarily apply to all of her causes of action. A federal court exercising diversity jurisdiction applies the substantive law of the state in which it is sitting, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938), including that state's conflict of law rules. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941); Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 137 (2d Cir. 1991) (citing Krauss v. Manhattan Life Insurance Co., 643 F.2d 98, 100 (2d Cir. 1981)). "The New York Court of Appeals has clearly stated that 'right of publicity' claims are governed by the substantive law of the plaintiff's domicile because rights of publicity constitute personalty." Rogers v. Grimaldi, 875 F.2d 994, 1002 (2d Cir. 1989) (citing Southeast Bank, N.A. v. Lawrence, 66 N.Y.2d 910, 498 N.Y.S.2d 775 (1985)). By contrast, in right of privacy claims New York courts apply the substantive law of the state with the most significant relationship to the violation of the right. See Mathews v. ABC Television, Inc., No. 88 Civ. 6031, 1989 WL 107640, at *4 (S.D.N Y Sept. 11, 1989).
In this case, the plaintiff, a California domiciliary, has alleged in her complaint that Jordache violated both her right of privacy and her right of publicity. Similarly, in Mathews, a Kenyan plaintiff claimed that ABC Television, Inc., a New York corporation, violated his rights of privacy and publicity. Applying the choice of law rules of New York, the court reasoned that because the plaintiff resided in Kenya, "[t]he right of publicity law of Kenya, whatever it may be, should most likely be applied here." Id., at *3. At the same time, after applying New York's "most significant relationship" test, Mathews held that New York law applied to the right of privacy claim. Id., at *4.
In the instant case, California law will presumably apply to the right of publicity claim because the plaintiff is a California domiciliary. At the same time, New York law may apply to the right of privacy claim because, as the origin of the rebroadcasted commercial, New York has the most substantial contact with the broadcast and the alleged tort. However, for purposes of the instant motion, it is unnecessary to make a final determination on the choice of law question because, in the critical respects, the law of New York is substantially similar to that of California. In particular, as will be discussed below, both California and New York have adopted the "single publication rule" and the rights of plaintiffs are the same under both states' laws.
C. The Proposed Amendment
In New York, the single publication rule provides that a plaintiff, asserting violations of New York Civil Rights Law Sections 50 and 51, may bring only one cause of action for a particular broadcast, though damages suffered in all jurisdictions may be recovered in that action. See Nelson v. Working Class, Inc., No. 99 Civ. 8854, 2000 WL 420554, at *3 (S.D.N.Y. April 18, 2000) ("Under the single publication rule, held applicable to claims asserting violations under sections 50 and 51 of the New York Civil Rights Law in Khaury v. Playboy Publications Inc., 430 F. Supp. 1342 (S.D.N.Y. 1977), only one cause of action can be maintained and the damages suffered in all jurisdictions can be recovered in the one action."); Rostropovich v. Koch International Corp., No. 94 Civ. 2674, 1995 WL 104123, at *7 (S.D.N.Y. March 7, 1995) ("The single publication rule, which holds that distribution of the offending publication gives rise to only one cause of action, applies to section 51 claims."); Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119, 124, 81 N.E.2d 45, 47-48 (1948). The single publication rule also applies to right of privacy and right of publicity claims under California law:
In Cuccioli v. Jekyll Hyde Neue Metropol Bremen Theater Produktion GMBH Co., 150 F. Supp.2d 566 (S.D.N.Y. 2001), the Honorable Lewis A. Kaplan, U.S.D.J., considered whether a plaintiff who demonstrates violations of Sections 50 and 51 of the New York Civil Rights Law may recover for damages incurred outside of New York. Judge Kaplan held that "the substantive law of New York is that one may recover for trade or commercial use of one's likeness only to the extent that the use occurs in New York." Id. at 575. Judge Kaplan further explained that "out-of-state uses of plaintiff's likeness for trade or advertising purposes are not actionable under New York law. To the extent that plaintiff seeks damages based on such uses, his claim must be dismissed." Id.
This analysis not only departs from previous decisions in our district, see Nelson, 2000 WL 420554, at *3; Rostropovich, 1995 WL 104123, at *7, but, more importantly, it abandons the intent of the single publication rule. That rule was adopted in order to prevent multiple lawsuits resulting from the simultaneous communication of the offending material in many jurisdictions. See Restatement (Second) of Torts § 577A, Commente (1977) ("The purpose of the rule is to include in the single suit all damages resulting anywhere from the single aggregate publication."). Indeed, the defendant in this case has conceded that if liability is found, that liability will include any damages sustained outside New York.
No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.
Cal. Civ. Code § 3425.3. See also M.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 630, 107 Cal.Rptr.2d 504, 510 (4th Dist. 2001) ("In cases where essentially one harm has been alleged, the courts have interpreted the single-publication rule to mean that a plaintiff may have only one cause of action for one publication rather than multiple causes of action for torts such as defamation, invasion of privacy, personal injury, civil rights violations, or fraud and deceit."); McGuiness v. Motor Trend Magazine, 129 Cal.App.3d 59, 61, 180 Cal.Rptr. 784, 785 (2d Dist. 1982) ("Under the Uniform Single Publication Act, adopted in California, 'No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication. . . .'") (citing Cal. Civ. Code § 3425.3; Belli v. Roberts Brothers Furs, 240 Cal.App.2d 284, 288, 49 Cal.Rptr. 625, 628 (1st Dist. 1966)). Since this rule does not permit more than one cause of action, Ms. Zoll's amendment would be futile.
Conclusion
For the reasons set forth above, the plaintiff's motion to amend the complaint is denied.
SO ORDERED.