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granting leave to amend where additions "provide[d] clarification of existing claims" and did not "add new claims or causes of action"
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02 Civ. 3652(CSH)
October 1, 2003
MEMORANDUM OPINION AND ORDER
Two motions are presently pending in the captioned case. Plaintiff Marika Zoll moves to amend her complaint against Defendants Ruder Finn, Inc. ("Ruder Finn") and Jordache Enterprises, Inc. ("Jordache"). The Defendants, represented by the same counsel, oppose Plaintiff's motion to amend her complaint and cross-move for judgment on the pleadings or summary judgment dismissing the original complaint. This opinion resolves both motions.
I. PROCEDURAL HISTORY
Plaintiff's filing of the captioned case was preceded by the filing of a companion case in this Court, Zoll v. Jordache Enterprises, Inc., 01 Civ. 1339. I will refer to that earlier case as " Zoll I" and the captioned case, 02 Civ. 3652, as " Zoll II".
The factual allegations underlying both suits are substantially the same. They are described in two prior opinions by this Court in Zoll I, reported at 2002 WL 31873461 (S.D.N.Y. Dec. 24, 2002) and 2003 WL 1964054 (Apr. 24, 2003), and an opinion in that case by Magistrate Judge Francis, reported at 2001 WL 1550943 (S.D.N.Y. Dec. 5, 2001), which this Court adopted without objection by either party. Familiarity with those opinions is assumed. The facts are reiterated only to the extent necessary to explicate the Court's reasoning on the present motions.
In Zoll I Plaintiff claimed that Jordache had violated her rights to publicity and privacy under New York Civil Rights Law §§ 50 and 51. She also alleged common law claims of unjust enrichment and trespass. All these claims arose out of the more recent use by Jordache of video images of Plaintiff wearing Jordache jeans that were first recorded for a 1978 television commercial promoting Jordache products. Some of these images were subsequently used in two commercials promoting Jordache products that aired in 1997. In 2000 a commercial originally produced in 1978 that featured images of Plaintiff was aired as part of a promotional campaign for Jordache's line of vintage jeans. The images of Plaintiff were also included in a series of compilation tapes produced for Jordache by Ruder Finn, an advertising agency, which were distributed to and broadcast by a number of local television stations across the nation, sometimes in conjunction with interviews of Jordache representatives.
Jordache moved for summary judgment in Zoll I. This Court granted the motion in part and denied it in part in the opinion reported at 2002 WL 31873461. I dismissed Plaintiff's common law claims, holding that they were subsumed by the New York Civil Rights Law. Id. at * 16. For reasons stated at length in that opinion and not here reiterated I also granted Jordache's motion for summary judgment in part, dismissing Plaintiff's claims with respect to the 1997 commercials, the 2000 televised rebroadcasts, and the televised broadcasts of the Ruder Finn compilation tapes. Jordache's motion was denied with respect to Plaintiff's statutory publicity and privacy claims arising out of the appearance of her images in the Ruder Finn compilation tapes used for promotional purposes in the Jordache publicity campaign. Those claims, I concluded, would be tried.
On May 13, 2002, while Jordache's motion for summary judgment in Zoll I was pending, Plaintiff filed the second action, 02 Civ. 3652, against Ruder Finn and Jordache. The original complaint in Zoll II focused upon Defendants' actions leading up to and including a May 2001 telecast that included images of Plaintiff, broadcast by station KTLA-TV in Los Angeles. Plaintiff asserted claims under California Civil Code § 3344 and California common law.
The Defendants in Zoll II moved for judgment on the pleadings or summary judgment dismissing Plaintiff's complaint. While that motion was pending, Plaintiff moved to amend her complaint in Zoll II This opinion resolves these two motions.
II. PLAINTIFF'S MOTION TO AMEND
Motions to amend pleadings are regulated by Rule 15(a) of the Federal Rules of Civil Procedure. Rule 15(a) provides, in pertinent part, that leave to amend "shall be freely given when justice so requires." "But a district court has the discretion to deny leave if there is a good reason for the denial, such as futility, bad faith, undue delay, or undue prejudice to the opposing party." Henry v. DOT, 69 Fed. Appx. 478, 481 (2d Cir. 2003) citing Foman v. Davis, 371 U.S. 178, 182(1962).
Plaintiff's motion to amend her complaint in Zoll II proposes few alterations to her initial complaint. These changes are, according to Plaintiff in her "Memorandum of Law in Support of Motion to amend Complaint," designed to "clarify and make it clear that defendant Ruder Finn Inc. which prepared the two videotapes in Zoll I and distributed, exhibited, promoted, made and caused the preparation of them . . . has liability and responsibility for such activities." (Pl. Mem. at 1). This goal is substantially achieved through proposed additions to paragraphs four and eleven of the complaint in which Plaintiff makes clear that she intends her pleading to cover not just the May 2001 KTLA-TV broadcast but also the production and distribution of the Ruder Finn compilation tapes. The language in Plaintiff's initial pleading in Zoll II does encompass the production and distribution of the Ruder Finn compilations, but these proposed additions to paragraphs four and eleven make the inclusion explicit.
This clarification is significant. As noted in Part I, supra, Jordache prevailed on a motion for summary judgment in Zoll I dismissing claims based on the May 2001 KTLA-TV broadcast, amongst other similar broadcasts. See 2002 WL 31873461, at *15. Plaintiff's claims based on the production and distribution of the Ruder Finn compilations were, however, preserved for trial in Zoll I. Id. Given this history, the clarity provided by the proposed amendments to paragraphs four and eleven of the complaint is substantial and helpful.
Defendants should not be prejudiced by these additions. The amendments provide clarification of existing claims in Zoll II They do not add new claims or causes of action. Moreover, the claims and the facts highlighted by these additions are substantially identical to those familiar to all parties, through counsel in the case of Ruder Finn, from their participation in Zoll I. Plaintiff's motion to amend paragraphs four and eleven as proposed is granted.
Plaintiffs motion to amend the complaint in Zoll II also proposes to add "under California law" to the end of paragraphs twelve and fifteen of the complaint. Again, these additions provide important clarification that Plaintiff means to bring her claims in Zoll II under California law. As with the additions to paragraphs four and eleven, these amendments do not add new causes of action. They simply provide useful clarity. Plainttiff's motion to amend paragraphs twelve and fifteen as proposed is granted.
Finally, Plaintiff proposes to raise her monetary claim from $250,000 to $1,000,000. The reason for this alteration is not immediately clear to this Court. Plaintiff provides no illumination in her papers. Defendants also do not address this proposed change with any specificity. Unable to see any particular gain or loss to either party from this amendment and in view of the permissive standard in Rule 15(a), the Court grants Plaintiff's request to amend her complaint as proposed.
III. DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT
Defendants seek dismissal of Zoll II either through judgment on the pleadings or summary judgment on the ground that it is barred by the doctrines of res judicata ("claim preclusion") or collateral estoppel ("issue preclusion"). (Def.'s Mem. at 1-8.) In "Defendant's [sic] Memorandum of Law in Opposition to Plaintiff's Motion to Amend Complaint" Defendants also argue for dismissal on the basis that the action in Zoll II is time barred and barred by the doctrine of "prior pending action." Defendants' motions largely draw on perceived similarities between the present action and Zoll I Plaintiff resists Defendants' motion by arguing both that the May 16, 2001 KTLA-TV broadcast at issue in the present action was a "republication" and that this broadcast "was never intended . . . [to] be made part of Zoll I and be decided under New York law, especially since [Zoll II] was and is based solely upon California laws." (Pl.'s Mem. at 4.)
A. CLAIM PRECLUSION
The present motion is made on the pleadings under Federal Rule of Civil Procedure 12(c). In their submissions to the Court all parties have made extensive use of mate materials outside the pleadings, including evidence adduced, memoranda submitted, and decisions rendered in Zoll I The Court will also rely on many of these materials. Accordingly, Defendants' motion will be treated as a Rule 56 motion for summary judgment as directed by the second sentence of Rule 12(c). This alternative ground was also specified by Defendants' in their original motion and all parties have had ample opportunity to submit salient material to the Court.
In their "Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment," Defendants assert that Plaintiff's claims in Zoll II are barred under the doctrine of res judicata as claim preclusion, having been litigated and resolved on the merits by this Court in Zoll II Claim preclusion is a proper ground for a summary judgment motion. See Thompson v. County of Franklin, 15 F.3d 245, 253 (2d Cir. 1994). I move, then, to the merits.
In the federal system the doctrine of res judicata as claim preclusion provides that "[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398, 69 L.Ed.2d 103, 101 S.Ct. 2424 (1981). The same is true under New York law. See e.g. Pike v. Freeman, 266 F.3d 78, 91 n. 14 (2d Cir. 2001) ("there appears to be no significant difference between New York preclusion law and federal preclusion law"); Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) (pointing out that New York law mirrors the rule set forth in Federated Dep't Stores, Inc. v. Moitie, supra.)
1. Plaintiff's Claims in Zoll II are identical to her claims in Zoll I .
The production, distribution, and broadcast of the Ruder Finn compilation videos, including the May 2001 KTLA-TV broadcast, were all before this Court as part of the same series of transactions that Plaintiff alleged as causes of action in Zoll I. Moreover, as is set forth in detail in Judge Francis's memorandum and order issued on December 5, 2001 and adopted by this Court without objection on January 4, 2002, the KTLA-TV broadcast of May 2001 is, as a matter of law, part of Plaintiff's cause of action in Zoll I. Plaintiff's attempts to bring her claim in Zoll II under California law does not create a new cause of action, nor does her addition of Ruder Finn as a named defendant in Zoll II.
a. Plaintiff's claims in Zoll II are part of the same transaction litigated and under litigation in Zoll I.
To prevail on their motion for summary judgment Defendants must show that the claims in Zoll II are identical to the claims in Zoll I. Both federal and New York law analyze identity of claims using the "transactional approach." See Clarkstown Recycling Ctr., Inc. v. Parker, Chapin, Flattau Klimpl, 1 F. Supp.2d 327, 329 (S.D.N.Y. 1998); Antonious v. Muhammad, 873 F. Supp. 817, 821 (S.D.N.Y. 1995) ("once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy." quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d 687, 688, 429 N.E.2d 1158 (1981)).Plaintiff's claims in Zoll II are clearly part of the same transaction considered and currently under consideration in Zoll I. In Zoll I Plaintiff claimed violations of her rights to privacy and publicity under New York Civil Rights Law §§ 50 and 51, New York common law for unjust enrichment and trespass. Her claims in Zoll I are based, in part, on the production, distribution, and broadcasts of compilation tapes produced by Ruder Finn for Jordache. The prior opinions in this case, cited in Part I, demonstrate that these transactions, including the May 16, 2001 KTLA-TV broadcast, were the subject of significant consideration and reconsideration by Plaintiff, Jordache, and this Court in Zoll I In fact, this Court ruled that the broadcast itself, among other similar broadcasts, were "newsworthy" events and, as such, not actionable. 2002 WL 31873461 at *15. By contrast, claims based on the production and distribution of the Ruder Finn tapes, named as Plaintiff's 21 and 23 in Zoll I, were preserved for trial in Zoll I. Id.
As is made clear by her amended complaint in Zoll II, Plaintiff's claims in Zoll II are based on these same transactions. There, Plaintiff claims a cause of action based on the May 2001 KTLA-TV broadcast. (Am. Compl. at para. 4.) That is the same claim dismissed in Zoll I.
However, Plaintiff also alleges additional and separate causes of action against Jordache and Ruder Finn based upon the claim that "Ruder Finn Inc. made, produced, promoted, distributed and exploited two videotapes known as Plaintiff's 21 and 23 in the action called 'Zoll I.'" (Id.). These are the same transactions preserved for trial by this Court in Zoll I. In both cases, the transactions contemplated in Zoll II are the same as those pleaded in Zoll I.
b. As was established in Zoll I, the May 2001 KTLA-TV broadcast claimed as a cause of action by Plaintiff in Zoll II as part of Plaintiff's cause of action in Zoll I.Plaintiff contends that she did not intend to make the May 2001 KTLA-TV broadcast part of her complaint in Zoll I (Pl.'s Mem. at 4.) Defendants argue, and not without merit, that this assertion stretches credulity. (Pl.'S Reply at 2-7.) Plaintiff's intentions in this context matter not at all, however. As was settled in Zoll I, the KTLA-TV broadcast was, as a matter of law, part of the transactional cause of action in Zoll I.
As discovery progressed in Zoll I Plaintiff learned about several local news broadcasts, including the May 2001 KTLA-TV broadcast, that featured Ruder Finn compilation videos. Based on this information Plaintiff moved pursuant to Rule 15 of the Federal Rules of Civil Procedure for leave to file an amended complaint in Zoll I to add forty-eight causes of action under the statutes and common law of forty-eight different jurisdictions in order to reflect the distribution and display of the Ruder Finn compilations. In her motion to amend Zoll I and in her "Memorandum of Law in Support of Motion to Serve and File a Supplemental Complaint: Rule 15(d) F.R.Civ.P." filed in Zoll I, Plaintiff specifically mentioned the May 2001 KTLA-TV broadcast.
The motion was denied by Judge Francis in a memorandum and order issued on December 5, 2001, 2001 WL 1550943, which was adopted by this Court without objection on January 4, 2002. In this decision Judge Francis considered both New York and California law and determined that the production, distribution, and subsequent broadcasts of the Ruder Finn compilation tapes could only give rise to a single cause of action. Since a cause of action based on these tapes had already been pleaded in Zoll I, Judge Francis rightly concluded that the motion to amend would be futile because each of the alleged forty-eight additions to Zoll I were already present and before the Court in Zoll I.
Plaintiff's allegations in Zoll II add nothing to the reasoning and conclusions of prior opinions in Zoll I. Plaintiff's assertion that she did not intend to make the May 2001 KTLA-TV broadcast part of her claim in Zoll I is simply not relevant. Judge Francis and this Court considered this broadcast in Zoll I and determined that it was included in the cause of action brought based on the production and distribution of the Ruder Finn tapes. The production and distribution of the Ruder Finn compilations is the only surviving cause of action in Zoll I. All claims in Zoll II are based on these same transactions.
c. The addition of California law claims in Zoll II does not create a cause of action separate from those claimed by Plaintiff in Zoll I.
Plaintiff attempts to create a separate cause of action in Zoll II by pleading violations of California statute and common law in place of her claims under New York statutes and common law in Zoll I (Pl.'s Counter Statement at 2; Pl.'s Mem. Opp. at 2, 4). For the purposes of claim preclusion, however, the relevant analysis focuses on facts relevant to a prior cause of action, not a comparison of law or legal theories. See Karamoko v. New York City Hous. Aulh., 170 F. Supp.2d 372, 377 (S.D.N.Y. 2001) ("'the facts surrounding the transaction or occurrence . . . operate to constitute the cause of action [for res judicata purposes], not the legal theory upon which a litigant relies.'") (quoting Saud v. Bank of New York, 929 F.2d 916, 919 (2d Cir. 1991)); Creed Taylor, Inc. v. CBS Inc., 718 F. Supp. 1171, 1175 (S.D.N.Y. 1989) ("'once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.'") (quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (N.Y. 1981)). The transaction at issue in Zoll II is identical to a transaction at issue in Zoll I. Plaintiff's proposal that the transaction be analyzed under California law rather than New York law does not create a new cause of action.
The effects of claim preclusion are not diminished by the addition of a new legal claim, particularly when that claim could have been raised in the prior proceeding. See Waldman v. Village of Kiryas Joel, 207 F.3d 105, 110 (2d Cir. 2000) ("A plaintiff cannot avoid the effects of res judicata by 'splitting' his claim into various suits, based on different legal theories."); Irish Lesbian Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998) ("Res judicata bars litigation of any claim for relief that was available in a prior suit between the same parties or their privies, whether or not the claim was actually litigated."); Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir. 1992) ("'judgment upon the merits in one suit is res judicata in another where the parties and subject-matter are the same, not only as respects matters actually presented to sustain or defeat the right asserted, but also as respects any other available matter which might have been presented to that end.'") (quoting Grubb v. Public Utils Comm'n of Ohio, 281 U.S. 470 (1930)). Plaintiff could have brought some of her claims under California law in Zoll I. See Zoll v. Jordache Enterprises, Inc., 2002 WL 31873461, *4-*5 (S.D.N.Y.). Plaintiff was on notice of this opportunity in Zoll I but chose to waive it. Id. The preclusive effects of Zoll I on claims in Zoll II are, thus, not diminished in the least by the fact that Zoll II is pleaded under Canformia law.
d. The fact that the Ruder Finn compilation was broadcast on KTLA-TV after Zoll I was filed does provide Plaintiff with a new cause of action.
Normally, when a defendant participates in actionable behavior after a suit is under way a plaintiff is neither required to amend her complaint to include the latest alleged offense nor is she precluded from bringing a second cause of action based on the more recent conduct. See Maharaj v. Bank America Corp., 128 F.3d 94, 97 (2d Cir. 1997); Los Angeles Branch NAACP v. Los Angeles Unified School District, 750 F.2d 731, 739 (2d Cir. 1984), cert. denied, 474 U.S. 919 (1985). See also Cohen v. Board of Educ. of East Ramapo Cent. School Dist, 84 A.D.2d 536, 537, 443 N.Y.S.2d 170 (2d Dep't 1981) (plaintiff was not precluded from bringing later suits "based upon events which occurred subsequent to the commencement of the prior proceeding"). This is not the normal case, however.
In her motion opposing summary judgment in Zoll II Plaintiff strikes an analogy between the Ruder Finn tapes and the "republication" of a hardcover book as a paperback to argue that the tape broadcasted by KTLA-TV in May 2001 was a "republication" of the original images of Ms. Zoll recorded in 1978. (Pl. Mem. Opp. at 3). Plaintiff is certainly correct insofar as this Court has ruled that the Ruder Finn compilations were, indeed, republications. See 2002 WL 31873461 at *11-*13. On this basis claims based on the production and distribution of these tapes were preserved in Zoll I. Id. at *13, *15.
Plaintiff is not correct insofar as she suggests that each broadcast of the tape is a republication. As was settled in Zoll I, broadcasts of the Ruder Finn compilations, including the May 2001 KTLA-TV broadcast, are covered by single-publication rules operative under both New York and California law. There is but one cause of action in both Zoll I and Zoll II; it is based on the production and distribution of the compilations themselves. In the context of the context of the analogy offered by Plaintiff, the cause of action here is for the production and distribution of a "paperback book." Plaintiff may not claim a new cause of action every time a "paperback" is read.
2. There is Sufficient Identity of Parties between Zoll I and Zoll II to Preserve the Preclusive Effects of Zoll I on Claims in Zoll II .
To prevail on their motion for claim preclusion, Defendants must show that "the previous action involved the plaintiff's or those in privity with them." Monahan v. New York City Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000). Plaintiff here was also Plaintiff in Zoll I and, as such, was present and represented. Likewise, Defendant Jordache Inc. was present and represented in Zoll I as the named Defendant. Ruder Finn was not named as a Defendant in Zoll I.Despite the addition of Ruder Finn, Defendants contend that the claims in Zoll II are precluded because Ruder Finn is in privity with Jordache as to the claims in Zoll I and Zoll II. (Def. Mem. at 5-6). The party requirement under the doctrine of claim preclusion exists primarily for the purpose of protecting the interests of parties not present or represented in prior litigation. See e.g. Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 813-815 (Conn. 1997); Federated Dep't Stores v. Moitie, 452 U.S. 394, 398 (1981) ("A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action."). Thus, Ruder Finn, if anyone, would be the party most likely to contest the preclusive effects of Zoll I. By asserting claim preclusion, however, Ruder Finn concedes that it is and will be bound by the outcome in Zoll I. This concession is formalized in an indemnification agreement. This agreement effectively places Ruder Finn in privity with Jordache in Zoll I. See Restat.2d of Judgments, § 40.
Plaintiff was represented by counsel in Zoll I. The bar of claim preclusion raised against her is not lowered by the fact that she did not name Ruder Finn as a defendant in Zoll I, unless the addition of Ruder Finn in Zoll II creates a different claim that was not and could not have been litigated in Zoll I, or the judgment in Zoll I was based on a special defense available to Jordache but not available to Ruder Finn. See Restat.2d of Judgments, § 51. As is set forth above, all claims in Zoll II are identical to some claims in Zoll I. Zoll I and Zoll II will likely involve all of the same witnesses, all of the same facts, and substantially similar legal theories. Matters settled on the merits in Zoll I did not involve any defense unique to Jordache that is not or would not have been available to Ruder Finn had Ruder Finn been named in Zoll I.
The close identity between Zoll II and Zoll I is a function of the fact that, as Defendants concede in their motion for judgment, Ruder Finn was acting as Jordache's agent when it produced and distributed the compilation tapes. (Def Mem. at 6). Whether Plaintiff presses her claim against the principal or the agent for the same acts, her interests are the same. This identity of interests further indicates that Jordache and Ruder Finn are privities in Zoll I. See Chase Manhattan Bank. N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d. Cir. 1995). Plaintiff could have named Ruder Finn as a defendant in Zoll I. That she did not does not give her leave to relitigate claims and issues settled on the merits in Zoll I.
3. Plaintiff's Claims in Zoll II were Partially Resolved on the Merits in Zoll I .
It is well settled that a grant of summary judgment is a final resolution on the merits. See Eston Funding Corp. v. Lafayette Towers Inc., 550 F.2d 710, 712-715 (2d. Cir. 1977). This Court issued a decision on Defendant Jordache's motion for summary judgment in Zoll I reported at 2002 WL 31873461 (S.D.N.Y.). The bases for this decision were confirmed in a memorandum opinion and order on cross-motions for reconsideration reported at 2003 WL 1964054 (S.D.N.Y.).
In these two orders this Court considered Plaintiff's claims based on the production, distribution, and broadcast of the Ruder Finn compilation tapes, including the May 2001 KTLA-TV broadcast. This Court determined that Plaintiff retained a cause of action for the production and distribution of the Ruder Finn compilations. 2002 WL 31873461 at *13. Since Plaintiff's claims relating to the production and distribution of the Ruder Finn tapes were not resolved on the merits in Zoll I, they cannot be precluded in Zoll II under the doctrine of res judicata. The "thing" has not been adjudged.
The broadcasts of these tapes were another matter, however. In Zoll I, this Court reviewed the broadcasts presented by the parties, including the May 2001 KTLA-TV broadcast, and determined that they were all "newsworthy" events. Id. at *15. As such, they could neither give rise to a cause of action nor could they be considered in the calculation of damages should Plaintiff prevail on her claims based on the production and distribution of the Ruder Finn compilations. Claims based on the KTLA-TV broadcast were resolved on the merits in Zoll I. All claims in Zoll II based in the same broadcast are precluded and, accordingly, dismissed.
There is an identical provision in California Civil Code § 3344, providing protection for images used in connection with "any news, public affairs, or sports broadcast or account, or any political campaign." This "newswortruness" applies equally to both to Plaintiff's § 3344 and California common law claims. See Montana v. San Jose Mercuty News. Inc., 34 Cal.App.4th 790 (1995). Claim preclusion trumps in this case, but were it not so the outcome here would be the same as in Zoll I where the New York news worthiness exception applied.
B. STATUTE OF LIMITATIONS
In their "Memorandum of Law in Opposition to Plaintiff's Motion to Amend Complaint" Defendants assert that Plaintiff's claims in Zoll II are time barred. In support of this claim Defendants correctly point out that California Civil Procedure Code § 340 provides for a one-year statute of limitations on right of privacy claims. The legislative history of California Civil Code § 3344 demonstrates that it provides relief only for violations of the right to privacy. See Lugosi v. Universal Pictures, 25 Cal.3d 813, 842 (Cal. 1979). Defendants thus allege that Plaintiff's claims based on § 3344 are time barred.
Defendants' argument relies on the assumption that time began to run against Plaintiff when the tape was distributed to KTLA-TV, an event that occurred in April of 2001, more than a year before Zoll II was filed. Plaintiff contends, or needs to, that time began to run on May 16, 2001 when the Ruder Finn tape aired. Plaintiff prevails.
The claim based on the Ruder Finn tapes "arises out of a mass communication governed by the Uniform Single Publication Act, which applies to a cause of action for 'libel or slander or invasion of privacy or any other tort founded upon any single publication.'" McGuiness v. Motor Trend Magazine, 129 Cal.App.3d 59, 63 (Cal.App. 1982) citing Cal. Civ. Code, § 3425.3 and quoting Khaury v. Playboy Publications, Inc., 430 F. Supp. 1342, 1345-1346 (S.D.N.Y. 1977). In these cases time begins to run from the first moment that that the communication was made available to the public. Id. Here, that moment is the May 16, 2001 broadcast, not the April 2001 date when the tape was mailed to KTLA-TVs production staff. Plaintiff's right of privacy claims in Zoll II are, thus, not time barred.
"The statute of limitations for infringement of the right of publicity in California is two years." Cusano v. Klein, 264 F.3d 936, 950 (9th Cir. 2001) citing Cal. Code Civ. Proc. § 339. Thus, Plaintiff's right of publicity claims under California common law is not time barred.
C. PRIOR DUPLICATIVE LITIGATION
In their "Memorandum of Law in Opposition to Plaintiff's Motion to Amend Complaint" Defendants argue that Zoll II should be dismissed as a duplication of Zoll I. "The rule against duplicative litigation is distinct from but related to the doctrine of claim preclusion or res judicata." Curtis v. Citibank N.A., 226 F.3d 133, 138 (2nd Cir. 2000). Specifically, for the rule to apply all claims and parties in the second case must be present in the first. The rule generally operates to prevent redundant litigation in different forums. It may also apply to different suits brought before the same court, however. See Id. at 139 (a plaintiff has "no right to maintain two actions on the same subject in the same court, against the same defendant at the same time.").
As is set forth in detail above, the claims in Zoll II and Zoll I are identical. A full consideration of Zoll I will likely require review of the same facts and evidence that will be presented in Zoll II While Ruder Finn is not a named defendant in Zoll I, this addition would not, of itself, negate the preclusive effect of Zoll I on claims in Zoll II were those claims in Zoll I to be fully resolved on the merits. Therefore, the addition of Ruder Finn to Zoll II should not prevent an application of the rule against duplicative litigation. The same holds for Plaintiff's addition of California law claims in Zoll II.
However, the rule against duplicative litigation does not always warrant dismissal of the second suit. Unlike a case where claim preclusion would apply, Zoll I has not been entirely resolved on the merits. Without a final judgment in Zoll I it cannot be said that all Zoll II claims will be dealt with fully in Zoll I. The rule against duplicative litigation as developed in New York provides this Court with options that account for this concern. "Because of the obvious difficulties of anticipating the claim or issue-preclusion effects of a case that is still pending, a court faced with a duplicative suit will commonly stay the second suit, dismiss it without prejudice, enjoin the parties from proceeding with it, or consolidate the two actions." Id. at 138. The last alternative seems the more prudent course in this case. Taking into account the foregoing analysis establishing common issues of law and fact between Zoll I and Zoll II, the Court will order consolidation of the two cases for trial pursuant to Federal Rule of Civil Procedure 42(a) in order to minimize "unnecessary costs or delay" in trying the two cases separately.
D. CHOICE OF LAW
Having consolidated Zoll I and Zoll II for trial the Court is presented with a choice of law problem. As was noted in the Court's December 24, 2002 decision in Zoll I, Plaintiff impliedly consented to use New York law to settle Zoll I 2002 WL 31873461 at *5. This Court's inference of Plaintiff s consent assumed and relied upon Plaintiff's apparent belief that she had a separate cause of action pending under California law. Id. at note 3. Accordingly, this Court's choice of law ruling in Zoll I was limited to the then "present action." Id. at *5.In the present opinion the Court has corrected Plaintiff's erroneous belief that she has two completely separate causes of action. The Court will also consolidate Zoll I and Zoll II for trial. These alterations present the Court with a context significantly different from that relied upon to resolve choice of law issues during pretrial litigation in Zoll I. Consistent with this change of circumstances the Court will now treat Plaintiff's claims in Zoll II as a request for the Court to decide what substantive law should govern claims presented in the consolidated action.
As Judge Francis pointed out in his December 5, 2001 decision in Zoll I, "[a] federal court exercising diversity jurisdiction applies the substantive law of the state in which it is sitting, including that state's conflict of law rules." 2001 WL 1550943, at *2. Under New York choice of law rules a plaintiff may invoke the property law of her state of domicile to govern right of publicity claims. Id. Right of privacy claims, by contrast, are governed by the substantive tort law of the forum with the most significant relationship to the alleged violation. See Mathews v. ABC Television, Inc., 1989 WL 107640 *4 (S.D.N.Y.).
Plaintiff's New York property claims were dismissed in Zoll I because New York Civil Rights Code §§ 50 and 51 subsume New York common law claims. 2002 WL 31873461, at *15-*17. The claim preclusive effects of this decision do not reach to Plaintiff's common law property claims in Zoll II, which are based on California common law. As a California domiciliary and under New York choice of law rules, Plaintiff may avail herself of California common law for her unjust enrichment and trespass claims relating to the production and distribution of the Ruder Finn compilation tapes. She has done so in Zoll II. In the consolidated action, then, California common law will govern Plaintiffs property claims for unjust enrichment and trespass.
New York has the most significant relationship to the alleged violations of Plaintiffs privacy rights. The original images of Plaintiff were recorded in New York. Both Jordache and Ruder Finn are located in New York. Their agency agreement was cast and consummated in New York, where the compilation tapes were produced. New York law will, therefore, govern Plaintiff's right of privacy claims against both parties in the consolidated action. California Civil Code § 3344 only provides relief for violations of the right to privacy. See Lugosi v. Universal Pictures, 25 CaL 3d 813, 842 (Cal. 1979) (analyzing the legislative history of § 3344). In the consolidated action, Plaintiff's claims based on § 3344 are, accordingly, dismissed. New York Civil Rights Law §§ 50 and 51 will govern Plaintiff's right of privacy claims arising from the production and distribution of the Ruder Finn tapes.
IV. CONCLUSION
For the foregoing reasons, the Court makes the following Order:
1. Plaintiff's motion to amend her complaint in the above-captioned case is granted. She is directed to file and serve the amended complaint on or before October 15, 2003. Defendants are directed to file and serve their answer within the time provided for by the Federal Rules of Civil Procedure.
2. Defendants' motion for judgment on the pleadings, or in the alternative for summary judgment, is granted in part and denied in part.
3. In the exercise of the Court's discretion, and pursuant to Rule 42(a), Fed.R.Civ.P., the above-captioned case is consolidated with Zoll v. Jordache Enterprises, Inc., No. 01 Civ. 1339 (CSH), for a jury trial on the issues remaining after the decisions in this opinion and prior opinions of the Court.
4. Counsel for the parties are directed to attend a status conference in Room 17C, 500 Pearl Street, at 4:30 p.m. on October 16, 2003. The agenda for the conference will include considering whether any further steps are necessary to make the consolidated cases ready for trial; setting a trial date; and setting dates for the submission of any in limine motions and the submission of proposed jury voir dire questions and requests to charge.
It is SO ORDERED.