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Lohan v. Perez et al Doc. 51 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------X LINDSAY LOHAN, Plaintiff, MEMORANDUM AND ORDER 11 CV 5413 (DRH) (ARL) - against - ARMANDO CHRISTIAN PEREZ also known as Pitbull, SHAFFER CHIMERE SMITH, JR. also known as Ne-Yo, NICK VAN DE WALL also known as Afrojack, J. RECORDS, SONY MUSIC ENTERTAINMENT, SONY MUSIC HOLDINGS INC., RCA MUSIC GROUP, POLO GROUNDS MUSIC, POLO GROUNDS MUSIC PUBLISHING, INC., POLO GROUNDS MUSIC, INC., MR. 305, INC., MR. 305 ENTERPRISES, INC., JOE JOHN, and JANE JOHN, 1 THROUGH X, Defendants. -----------------------------------------------------------X APPEARANCES: Attorneys for Plaintiff STEPHANIE G. OVADIA, ESQ. 2160 Hempstead Turnpike East Meadow, New York 11554 By: Stephanie G. Ovadia, Esq. Attorneys for Defendants MCDERMOTT WILL & EMERY LLP 333 Avenue of the Americas, Suite 4500 Miami, Florida 33131 By: Audrey M. Pumariega, Esq. (Pro Hac Vice) Marcos Daniel Jimenez, Esq. KASOWITZ BENSON TORRES & FRIEDMAN LLP 1633 Broadway New York, New York 10019 By: Sarah Gibbs Leivick, Esq. Dockets.Justia.com Attorneys for Respondent Stephanie G. Ovadia, Esq. KRINKSY, PLLC 233 Broadway, Suite 707 New York, New York 10279 By: Pery D. Krinsky, Esq. For Respondent Anand Ahuja, Esq. ANAND AHUJA, ESQ., Pro Se 101-70 Lefferts Boulevard, Suite #2 Richmond Hill, New York 11419 HURLEY, Senior District Judge: Plaintiff Lindsay Lohan (“plaintiff”) commenced this action against defendants Armando Christian Perez (a/k/a Pitbull) (“Perez”), Shaffer Chimere Smith, Jr. (a/k/a Ne-Yo) (“Smith”), Nick Van de Wall (a/k/a Afrojack) (“Van de Wall”), J. Records, Sony Music Entertainment, Sony Music Holdings Inc., RCA Music Group, Polo Grounds Music, Polo Grounds Music Publishing, Inc., Polo Grounds Music, Inc., Mr. 305, Inc., Mr. 305 Enterprises, Inc., Joe John, and Jane John, 1 through X (collectively, “defendants”), asserting that defendants violated Sections 50 and 51 of the New York Civil Rights Law by using plaintiff’s “name, characterization, and personality for advertising purposes, and for purposes of trade and commercial benefits” without her consent. (Compl. ¶ 24.) Plaintiff has also asserted claims for unjust enrichment and intentional infliction of emotional distress, and seeks monetary and injunctive relief. Presently before the Court is defendants’ motion, made pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), seeking dismissal of the Complaint for failure to state a claim. 2 After that motion was fully briefed and filed, defendants filed a separate motion seeking sanctions against plaintiff and her counsel, Stephanie G. Ovadia, Esq. and Anand Ahuja, Esq., for “asserting and continuing to advocate frivolous claims in bad faith and committing extensive plagiarism in [the] Memorandum of Law in Opposition to Defendants’ Motion [to] Dismiss the Complaint.” (Defs.’ Apr. 4, 2012 Letter at 1.) For the reasons set forth below, defendants’ motion to dismiss the Complaint is granted and defendants’ motion for sanctions is granted in part and denied in part. BACKGROUND The following facts are drawn from the Complaint and are presumed true for purposes of these motions. The Parties Plaintiff was at all relevant times “a professional actor of good repute and standing in the Screen Actors Guild.” (Compl. ¶ 2.) Defendants Perez, Smith, and Van de Wall each “served in the capacity of creator, writer, lyric writer, artist, and singer of the song ‘Give Me Everything’” (the “Song”). (Id. ¶¶ 3-5.) Defendant J. Records is an American record label owned and operated by defendants Sony Music Entertainment and Sony Music Holdings Inc., (id. ¶ 6), which are owned, in turn, by defendant RCA Music Group (id. ¶ 9). Defendant Polo Grounds Music is a “record label [and] a hip hop and full service entertainment company” that is owned and registered as a corporation under the names Polo Grounds Music Publishing, Inc. and Polo Grounds Music, Inc. (Id. ¶ 11.) Defendant Mr. 305 is a record label registered under the name Mr. 305 Enterprises, Inc. (Id. ¶ 13.) Each of these defendants was allegedly “engaged, directly or indirectly in the creation, publishing, management, marketing, and promotions” of the Song. 3 (Id. ¶ 10; see also id. ¶¶ 8, 12 & 14.) The Song The Song “was and is a popular song of an international reputation and exerts a great influence throughout [the] United States, and other countries, and in the television, entertainment business and field of communication as well.” (Id. ¶ 16.) Plaintiff alleges that the Song “includes an unwarranted, unauthorized, and unfavorable mention of [her] name and personality, and allusions to [her] physical and mental character.” (Id. ¶ 18.) Specifically, approximately one-third of the way through the song, plaintiff’s name is used as follows: “So, I’m tiptoein’, to keep flowin’/ I got it locked up like Lindsay Lohan.” (Decl. of Courtney Caprio, dated Jan. 17, 2012, Ex. A at 1.)1 The Song was released on March 18, 2011 and has aired between that date and the present on radio broadcasts, the internet (including on blogs and websites such as www.youtube.com), and television in the State of New York (and elsewhere). (Compl. ¶ 19.) On June 21, 2011, the Song was incorporated and released on Perez’s album, entitled “Planet Pit.” (Id. ¶ 20.) Plaintiff alleges that she did not consent to or authorize the use of her name in the Song, and that the “appearance of [her] name and characterization” in the Song “causes [her] to be associated and identified in connection with defendants.” (Id. ¶¶ 19, 21.) Plaintiff further alleges that defendants used plaintiff’s name in the Song “for advertising purposes, and for purposes of trade and commercial benefits.” (Id. ¶ 24.) 1 As is discussed more fully in the text below, although the Song lyrics are not set forth in or attached to the Complaint, the Court may properly consider them as part of this Rule 12(b)(6) motion because they are integral to the Complaint. 4 The Complaint In the Complaint,2 plaintiff alleges that she is entitled to monetary and injunctive relief, and asserts (1) that defendants violated New York Civil Rights Law Sections 50 and 51 by using her name in the Song, (2) an unjust enrichment claim, and (3) a claim for intentional infliction of emotional distress. DISCUSSION I. Defendants’ Motion to Dismiss A. Legal Standard 1. Rule 12(b)(6) Rule 8(a) provides that a pleading shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6). First, in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), the Court disavowed 2 Plaintiff originally commenced this action in New York State Supreme Court, Nassau County. On November 4, 2011, defendants removed the action to this Court on the basis of diversity jurisdiction, asserting that, despite the allegations in the Complaint that plaintiff was a resident of New York, she was actually a citizen of California, and that defendants were citizens of Florida, Georgia, New York, and the Netherlands. (Not. of Removal at 2.) On December 9, 2011, plaintiff filed a motion to remand the action to state court, asserting that defendants had “not proved such diversity claim by any documentary or conclusive evidence.” (Mot. to Remand at 1.) On December 12, 2011, the Court issued an Electronic Order stating that plaintiff had filed the motion to remand in contravention of Rules 3(A) and 3(F) of the Court’s Individual Practice Rules. Those rules state that any party intending to file a motion must submit a pre-motion conference letter and await a conference and/or briefing schedule, and that no motion may be filed until it is fully briefed. Accordingly, the Court rejected the motion to remand without prejudice and with the right to renew upon compliance with these rules. Plaintiff did not re-file the motion. 5 the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” See Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46) (internal quotation marks omitted). Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Id. at 555 (citations and internal quotation marks omitted). More recently, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court provided further guidance, setting forth a two-pronged approach for courts deciding a motion to dismiss. First, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S.