SAMANTHA BARBASH, Plaintiff

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------- X : SAMANTHA BARBASH, : : Plaintiff, : : -v- : : 20cv123 (DLC) STX FINANCING, LLC (dba STX : ENTERTAINMENT), a Delaware limited : OPINION AND liability company; GLORIA SANCHEZ : ORDER PRODUCTIONS, INC., a California : corporation; NUYORICAN PRODUCTIONS, : INC., a California corporation; POLE : SISTERS, LLC, a California limited : liability company; and JOHN and JANE : DOES 1-10, : : Defendants. : : ------------------------------------- X APPEARANCES For plaintiff Samantha Barbash: Bruno V. Gioffre, Jr. Stephen A Florek III Law Office of Bruno V. Gioffre, Jr. 2 Westchester Park Drive Suite 205 White Plains, NY 10604 For defendants STX Financing, LLC (dba STX Entertainment); Gloria Sanchez Productions, Inc.; Nuyorican Productions, Inc.; and Pole Sisters, LLC: Jacquelyn N. Schell Ballard Spahr LLP 1675 Broadway 19th Floor New York, NY 10019-5820 DENISE COTE, District Judge: Plaintiff Samantha Barbash (“Barbash”) has sued producers and distributors of the motion picture Hustlers for invasion of privacy and defamation. For the reasons stated below, the defendants’ motion to dismiss this action is granted. Background The following facts are taken from Barbash’s amended complaint (“FAC”), documents integral to it, or documents properly considered on a motion to dismiss. The facts alleged in the FAC are taken to be true for purposes of this motion. Coal. for Competitive Elec. v. Zibelman, 906 F.3d 41, 48-49 (2d Cir. 2018). Barbash worked as an adult entertainment host at Score’s Gentleman’s Club and Hustlers Club in Manhattan. Barbash pled guilty in 2015 to conspiracy, assault, and grand larceny in connection with that work and was sentenced to a five-year term of probation. In December 2015, New York Magazine published “The Hustlers at Scores” by Jessica Pressler (“Pressler Article”), which described the scheme to which Barbash pleaded guilty. The Pressler Article reports that Barbash “had come up with the innovation that was making her rich: a special drink spiked with MDMA and ketamine” that was given to the scheme’s victims. 2 While one of Barbash’s co-conspirators appears to have been the principal source of information for the article and is quoted extensively, the author also reports on a conversation with Barbash and directly quotes Barbash. Inspired by the Pressler Article, STX Financing, LLC, Gloria Sanchez Productions, Inc., Nuyorican Productions, Inc., and Pole Sisters LLC (“Defendants”) produced, developed, and distributed the motion picture Hustlers. Hustlers allegedly portrays Barbash, played by film and music star Jennifer Lopez, as the ringleader of a group of adult dancers who drugged their patrons and stole large sums of money from them while they were incapacitated. The Defendants initially sought Barbash’s consent to the production of the film, but Barbash refused to give her consent. The film was released in theaters on September 13, 2019, and will be distributed worldwide through home entertainment channels. The FAC alleges that the Defendants have used Barbash’s identity, likeness, and character in the film and in marketing materials. After the release of the film, Barbash and her attorney gave two interviews to Vanity Fair: “‘I Wasn’t That Impressed’: Hustlers’ Real-Life Ramona Reviews the Film” on September 17, 2019, and “Hustlers: Jennifer Lopez’s Real-Life Inspiration Says She Was Only Offered $6,000” on January 10, 2020. In addition, 3 Barbash wrote a memoir, Underscore: Breaking My Silence, that was published on April 12, 2020. Barbash filed this action on January 7, 2020. On April 15, the Defendants moved to dismiss the complaint. On April 16, the Court allowed Barbash to oppose the motion or instead to file an amended complaint by May 8. The Order noted that it would be unlikely that the plaintiff would be given a further opportunity to amend. On May 8, Barbash filed the FAC. She asserts that she pleaded guilty to conspiracy, assault, and grand larceny in 2017.1 In the FAC, Barbash advances two claims. First, she asserts that the Defendants’ unauthorized use of her personality for advertising, trade, and commercial purposes violated her right to privacy under N.Y. Civil Rights Law (“NYCRL”) §§ 50 and 51. Second, she claims that the Defendants defamed her in six statements and scenes in the film. Barbash seeks both damages and injunctive relief. On May 29, the Defendants moved to dismiss the FAC in its entirety. The Defendants’ motion to dismiss became fully submitted on July 13. 1 The transcript of Barbash’s plea allocution, however, indicates that she pleaded guilty in 2015. 4 Discussion When deciding a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., a court must “constru[e] the complaint liberally, accept[] all factual allegations as true, and draw[] all reasonable inferences in the plaintiff’s favor.” Zibelman, 906 F.3d at 48-49. To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must do more than offer “naked assertions devoid of further factual enhancement,” and a court is not “bound to accept as true a legal conclusion couched as a factual allegation.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In determining the adequacy of a complaint, “a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). In addition, “when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant’s motion to dismiss, without converting the 5 proceeding to one for summary judgment.” Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (citation omitted). A court may also take judicial notice of facts that are publicly available if their accuracy cannot reasonably be questioned. See Fed. R. Evid. 201(b); Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016); Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008). The parties agree that the Court may take judicial notice of the transcript of Barbash’s guilty plea even though Barbash did not attach it as an exhibit to the FAC. The FAC refers to the plea and contains descriptions of her allocution. The Defendants have submitted it as an exhibit to their motion to dismiss and rely on it in making this motion. Additionally, the court may consider Barbash’s interviews with Vanity Fair and the existence of her published memoir in determining the adequacy of the FAC. Both the interviews and the memoir are “matters of public record.” Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir. 2012). I.! New York Civil Rights Law §§ 50 and 51 The Defendants have moved to dismiss Barbash’s claim for invasion of her privacy. Under § 50 of the NYCRL, “[a] person, firm or corporation that uses for advertising purposes, or for 6 the purposes of trade, the name, portrait or picture of any living person without . consent . is guilty of a misdemeanor.” NYCRL § 50. Section 51 provides a private right of action for “[a]ny person whose name, portrait, picture or voice” is used in violation of § 50. Id. § 51. The central issue in resolving Barbash’s statutory right of privacy claim is whether §§ 50 and 51 protect an individual’s “likeness and character” in addition to her “name, portrait, picture or voice.” NYCRL § 51. Unlike other jurisdictions, New York “does not recognize a common-law right of privacy and provides a statutory remedy only for the commercial use of a living person’s name, portrait, picture, or voice without their consent.” Blitzer v. Potter, No. 03 CIV. 6124 (DLC), 2005 WL 1107064, at *16 (S.D.N.Y. May 6, 2005). The legislative intent underlying §§ 50 and 51 “underscore[s] that the statute is to be narrowly construed and ‘strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.’” Messenger v. Gruner Jahr Printing & Pub., 208 F.3d 122, 125-26 (2d Cir. 2000) (quoting Finger v. Omni Publications Int’l, 77 N.Y.2d 138, 141 (1990)). The FAC does not allege that Hustlers or its marketing materials use Barbash’s “name, portrait, picture, or voice.” It only alleges that the Defendants exploited her “likeness and 7 character” in creating and marketing the film. This is insufficient to plead a violation of § 51. Accordingly, Barbash’s right of privacy claim is dismissed. II.! Defamation The Defendants have moved to dismiss the defamation claim on the grounds that the identified statements do not concern the plaintiff, are substantially true, and that the FAC does not plead a claim on behalf of a plaintiff who is properly categorized as a limited-purpose public person. To plead a defamation claim under New York law, a plaintiff must allege: “(1) a written defamatory factual statement concerning the plaintiff; (2) publication to a third party; (3) fault; (4) falsity of the defamatory statement; and (5) special damages or per se actionability.” Chau v. Lewis, 771 F.3d 118, 126-27 (2d Cir. 2014) (citation omitted) (applying New York law).2 A.! Concerning the Plaintiff The test for whether an allegedly defamatory statement concerns the plaintiff for purposes of a defamation claim is whether “‘[t]he reading public acquainted with the parties and 2The plaintiff is a New York State resident.

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