Toffoloni v. LFP Publishing Group, LLC

Filing 1

NOTICE OF REMOVAL with COMPLAINT filed by LFP Publishing Group, LLC. (Filing fee $350 receipt number 574099) (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet)(dr) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Additional attachment(s) added on 2/7/2008: # 3 Memorandum continued) (dr).

Toffoloni v. LFP Publishing Group, LLC
v '

Doc. 1 Att. 1

IN THE SUPERIOR COURT OF FAYETTE COUNTY STATE OF GE O RGIA MAUREEN TOFFOLONI, as Administrator and Personal Representative of the ESTATE OF NANCY E. BENOIT,

Civil Action File No .

V

.

Plaintiff

2009 V- 0/18s-

LFP PUBLISHING GROUP , LLC . , d/b/a Hustler Magazine, MARK SAMANSKY , an individual, and other distributors and sellers of Hustler Magazine, as Defendants X, Y, and Z,

copy

-3E

COMPLAINT

OMES NOW Plaintiff Maureen Toffoloni, as Administrator of the Estate ofNancy E . Beno it, and files th i s Verified Complaint, seeking a Temporary Restraining Order,

Permanent Injunction, and Damages against Defendants LFP PUBLISHING GROUP, LLC , d .b .a "Hustler Magazine," MARK SAMANSKY, and the other as yet unknown distributors and sellers of Hustler Magazine, and shows the Court as follows : S SDICTIO

(1)
Plaintiff Maureen Toffoloni is aa resident of the State of Florida and is the duly appointed administrator and personal representative of the Estate of Nancy E . Benoit,

Dockets.Justia.com

deceased in Fayette County, Georgia. Prior to her untimely death, Nancy Benoit resided in
Fayette County, Georgia .

(2)
Defendant UP Publishing Group, LLC ("Defendant LFP") is a limited liability company organized under the laws of the State of Delaware and is doing business in the State of Georgia and Fayette County . Defendant UP can be served with the Summons and

Complaint in this case by second original. The Defendant UP has indicated through counsel that it will acknowledge service . Defendant LFP is the publisher of "Hustler
Magazine .") (3)

Defendant Mark Samansky is a resident of the State of Colorado . He can be served with the Summons and Complaint in this case by second original at his residence, 10820 Towerbridge Lane, Highlands Ranch, Colorado 80130 . Defendant Samansky is the
photographer who photographed and videotaped Nancy Benoi % formerly known as "Nancy Daus".

(4) The unknown Defendants are persons, corporations or other business entities who distribute or sell Hustler Magazine in Fayette County. The proper names ofthese Defendants
will be added when their names are known to Plaintiff.

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(5)
The Defendants are subject to jurisdiction in this Court and venue is proper inn this Court pursuant to Keptn v. Hustler Mag gLne . Inc ., 465 U.S . 770 (1984) .

FACT (6) Plaintiffre-alleges and incorporates by reference all allegations set forth in Paragraphs
(1) through (5) as if more fully set forth herein. (7) Hustler Magazine is apornographic magazine, published frequently, upon information

and belief, on a monthly basis . The majority of the content of each monthly magazine is
graphic and sexual photographs of nude women .

(8) The Defendants acting as "Hustler Magazine" intend to publish and sell, and have already published and sold in the so-called "March" issue of Hustler Magazine, nude and
partially nude photographs ofNancy Benoit . Upon information and belief, Hustler Magazine intends to publish other photographs of Nancy Benoit if it is able to do so . "Exhibit A" to this Complaint, filed herewith under seal, is a true and correct copy of the article and photographs of Nancy Benoit from the "March" issue of Hustler Magazine.

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(9)
The photographs that Hustler Magazine intends to publish were created from a videotape made white Nancy Benoit, then known as Nancy Daus, was posing for photographs approximately 20 years ago.

(10)
Defendant Samansky was the photographer taking the photographs and videotape of
Nancy Benoit. Nancy Benoit did not sign a "model's release" or otherwise consent to Mr . Samansky's use of her image for any purpose .

(11)
Nancy Benoit was aware that she was being videotaped by Mr . Samansky, but did not give permission to the photographer to use the videotape in any way . Se Aff davit of James i

Daus 1 6, attached hereto as "Exhibit B ."
(12)

After the photographic session was over, Nancy Benoit immediately decided she did
not want to have the photographs published, and she refused to give the photographer permission to do so . See Affidavit of James Daus 1 7 .

(13)
Nancy Benoit and her then husband, tames Daus, insisted that the photographer

immediately destroy all photographs of her. Defendant Samansky represented to Nancy
Benoit and her then husband, James Daus, that all photographs and the videotape had been
.4 _

destroyed by him . Nancy Benoit believed that all photographs and videotape of her had been
destroyed within a short time after they were made . See Affidavit of James Daus, 1 8 . (14) Nancy Benoit did not want to have nude or partially nude photographs of herself

published by Mr. Samansky, or anyone else . See Affidav i t of Jim Daus, 1 9 .
(15) Until Nancy Benoit's untimely death in June 2007, Nancy had a career as a model, professional woman wrestler and public figure . Nancy Benoit exploited her image for commercial purposes. The Estate of Nancy Benoit has the legal right to control use of Nancy's image for commercial and/or financial gain .

( 16)
Upon information and belief, Defendant Samanksy lied to Nancy and James Daus and did not destroy the videotape of Nancy Benoit . Defendant Samansky apparently created still

photographs from the videotape . Upon information and belief, Defendant Samansky and/or the Defendant LFP currently have possession of the videotape and photographs . (17) Without Nancy's permission, Defendant Samansky sold the photographs and/or still images from the videotape to the Defendant LFP d/b/a Hustler Magazine for publication .
Plaintiff does not know the amount of money that changed hands between Hustler Magazine and Mark Samansky .
-S-

(18) On January 16, 2008, Counsel for Plaintiff sent a lever to Hustler Magazine

requesting that Hustler refrain from publishing the photographs because publication of the
photographs would be a violation of Nancy Benoit's right of publicity . A true and correct copy of that letter is attached hereto as "Exhibit C ." (19) On January 25, 2008, counsel for Defendant UP responded to counsel for Plaintiff indicating that Hustler denied Plaintiff s request and intended to publish nude and partially nude photographs in its March issue . Defendant UP claims, in that letter, that publication of the photographs of Nancy Benoit is authorized as an exercise of freedom of the press

"[t]he photographs of Ms . Benoit as a beautiful young woman in her twenties are being used
to illustrate a legitimate and serious news article-about her life ." A true and correct copy of

that letter is attached hereto as "Exhibit D" .
(20)

Defendant LFP's publication of the photographs is not authorized as an exercise of
the freedom of the press because publication of nude and partially nude photographs of Nancy Benoit are not necessary or relevant to a "legitimate and serious news article"

(21)
Hustler Magazine has already begun disseminating photographs of Nancy Benoit and

adverti si ng the nude images to its customers. Wrestle Zone, an online wrestling enthusiast
-6-

website, contains a fan posting about the upcoming "March" issue of Hustler Magazine and a link to other photographs of Nancy Benoit . A print out of the Wrestle Zone posting is attached hereto as "Exhibit E".

C OUNT 1 : PETITION FOR TEMPORARY RESTRA IN ING ORDER (22) Plaintiffre-alleges and incorporates by reference all allegations set forth in Paragraphs
( 1 ) through (21) as if more fully set forth herein . (23) If the photographs of Nancy Benoit are published, Plaintiff will be immediately and

irreparably harmed, in that the photographs cannot be unpublished . Once they are published,
the public will always be able to see them . (24)

Among other legal matters, Plaintiff intends to file a wrongful death action in this Court on behalf of the Estate of Nancy Benoit concerning the murders ofNancy Benoit and her minor child Daniel Benoit . If the photographs are published, Pla i ntiff will be

immediately and irreparably harmed because the photographs may be seen by, and unfairly
influence, the potential venire for the wrongful death case . (25) Monetary damages are inadequate to remedy the harm to Plaintiff.

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COUNT 2 : PETITION FOR PERMANENT INJUNCTION
(26) Plaintiffre-alleges and incorporates by reference all allegations set forth in Paragraphs ( 1 ) through (25) as if more fully set forth herein . (27) Publication of the photographs would constitute a violation of Nancy Benoit's right of publicity, which may be enforced by her estate .

(28)
No adequate remedy at law exists if Hustler Magazine is permitted to publish or

continue to publish the photographs of Nancy B enait.
COUNT 3: CLAIM FOR DAMAGES (29)

Plaintiffre-alleges and incorporates by reference all allegations set forth in Paragraphs
(1) through (28) as if more fully set forth herein. (30) In the alternative, the Defendants have already published and sold photographs of Nancy Benoit so as to exploit her image for their own commercial purposes . Defendants are

liable to Plaintiff for actual and punitive damages for violation of Nancy Benoit's right of publicity in an amount to be determined by a jury. Defendants are also liable to Plaintiff for
attorney fees and expenses o f litigation pursuant to O . C .G.A . §13-6- 1 I .
-8 -

WHEREFORE, Plaintiff respectfully prays as follows :
(a) that the Court timely hear oral argument from Plaintiff on the application for Temporary Restraining Order; (b) that the Court issue a Temporary Restraining Order preventing Defendant UP

Publishing Group, LLC and Hustler Magazine from publishing photographs
of Nancy Benoit; (c) that the Court issue a Permanent injunction preventing Defendant UP Publishing Group, LLC and Hustler Magazine from publishing photographs of Nancy Benoit ; and (d) that the Court grant Plaintiff such other and further relief as is just and proper, including actual and punitive damages, all costs of this litigation, and attorneys

fees pursuant to O . C . G .A . § 13-6 - 11 .
Respectfully submitted this day of February, 2008 . . _ . .._ . , . . ._. Ri chard P . Decker T~ State Bar of Georg ia No. 215600 DECKER, HALLMAN, BARBER & BRIGGS Attorneys for Plaintiff Maureen Toffoloni 260 Peachtree Street, N .W . Suite 1700 Atlanta, Georgia 30303 (404) 522- 1 500

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IN THE SUPERIOR COURT OF FAYETTE COUNTY STATE OF GEORGIA MAUREEN TOFFOLONI, as Administrator and Personal Representative of the ESTATE OF NANCY E . BENOIT,.
V.

Civil Action File No .

PWntiff

LFP PUBLISHING GROUP, LLC ., dlb/a Hustler Magazine, MARK SAMANSKY, an individual,

and other distributors and sellers of Hustler Magazine, as Defendants X, Y, and Z. Defendants .

VERIFKA11ON
Personably appeared before me an officer duly authorized by law to administer oaths, MAUREEN TOFFOLONI, as Administrator and Personal Representative of the Estate of Nancy E. Benoit who, after being sworn, deposes and states that she has read the foregoing Complaint, and that the facts and allegations contained therein are true and correct to the best of her knowledge . UREErI' TOFFOLOTTI Sworn to and subscribed before me this _~ day of 1~ 2008. ~~

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Notary Public (Affix Seal and Expiration Date) ~

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XHIBIT

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IN ' TB B SUPERIOR COURT OF FAYETTE COUNTY STATE OF GEORGIA
MAUREEN TQFFOLONI, as Administrator and Personal Representative of the ESTATE OF NANCY B. BENOTT,
V

Civil Action File No.

.

Plaintiff

LFP PUBLISHING GROUP, LLC., dJbla Hustler Magazine, MARK SAMANSKY, an individual, and other distributors and sellers of Hustler Magazine, as Defendants X--, Y, and Z,

Defendants .

STATE OF FLORIDA Personally appeared before me, the undersigned officer duly autfiorizedd by law to
administer oaffi.s, JAMES DAUS, who, afterbeing duly sworn, deposes and states as follows:

(1) facts stated herein and know them to be true . My name is tames Daus. I am over the age of 18 . I have personal knowledge of the (2)

Y 'give this Affidavit in support of Plaintiffs Complaint and Application for a
Temporary Restraining Order and Permanent Injunction against Defendant LFP Publishing

Group, LLC.

(3) From 199 1 to 1986, I was the husband and business partner of Nancy Benoit who was

known at the time as Nancy Daus . I acted as the manager and promoter of her career during
that time. (4) 1 am aware thatHustEer Magazine has published and/or intends to publ ish nude and/or

partially nude photographs of Nancy Benoit . I understand that these photographs were created from a videotape taken while Nancy Benoit posed for photographs praxintately twenty-five years ago for a photographer named Mark Samansky. (5) I was present at all times when Nancy Benoit posed for photographs by Mr. Samansky .
(6) Nancy Benoit and I were aware that Mr . Samansky was videotaping her while also taking still photographs, but nei#her Nancy or I ever gave permission to Ntr . Samm ask y to use

This took place in Florida in the Summer of 1983 .

the videotape in any way. (7) As soon as the photographs were taken, Nancy and I immediately decided she did not want to have the photographs published . Neither Nancy or I gave Mr. Samansky permission
to use the photographs or any videotape in any way.

all photographs of her . Mr. Saanansky told us they all photograpbz and the, videotape bad had been destroyed .

Nancy Benoit and I insisted that the photographer, Mr. SRmanSky, immediately desftY

(8)

been destroyed . Nancy B enoit and I believed that all photographs and the videotape of her

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Eg) I know of my own knowledge that Nancy Benoit did not want to have nude or partially nude photographs of herself published at any time . I know of my own knowledge that she never gave Mr. Samensky the authority to use any photographs or videotapes of her
for any purpose .

FURTHER AFFMNT SAYETH NOT.

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Sworn to ~d sibs ibed before me this ~ day a 2008 . V Lf
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EXHIBIT C

DECKER, HALLMAN, BARBER & BRIGGS
A PROFESSIONAL CORPORATION ATTORNEYS AT LAW

RICHAR D P. D ECKER*

ATLANTA, GEORGIA 30303 o-m a d, rdeckerQdh.6bEaw .com ' (404) 522.1 540 MAIN ads (404) 577-91 4 4FA CSiMiu · Etio aamlesedinv ainIsl

260 PEACHTRLE STREET, N W . ' SUITE 1700

January 16, 2008
Mr. Sean Berries Custodian of Records UP Internet Group, LLC UP Video Group, LLC 8484 Wilshire Blvd. Beverly Hills, CA 90211 Mr. David Caxillo Custodian of Records UP Publishing Group, LLC 8484 Wilshire Blvd. Beverly Hills, CA 90211

Re:
Gentlemen :

NM Toffoloni Benoit

This firm represents Maureen Toffolani, the Administrator of the Estate of Nancy Toffoloni Benoit, who died in June of 2007 . It has come to our attention that your website, Hustler magazine, or a related publication or entity intends to publish nude or partially nude photographs of Nancy Benoit . These photographs were apparently made years ago, under suspicious eirmnstancss, leading us to question the legal propriety of same. The purpose of this letter is to advise you of our client's strenuous objection to your publication of any photographs depicting the likeness of Nancy Benoit . The estate of Nancy Benoit, represented by our client Maureen'Foffaloni., would have legal title and any copyright to any likeness of Nancy Benoit . Your use of the likeness of Nancy Beno it in any form is expressly prohibited, unauthorized, and denied . She Martin Luther Kim. rr. Ceu&er far Social Change. Inc . v . American Heritage Products . Inc., 250 Ga. 135 (1982) .

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January 16, 2048 Page 2 Please advise the undersigned within 14 days of this letter that the publications or entities you represent will refrain from the publication of any photographs or likenesses of Nancy Benoit If we do not hear from you within 10 days, we will assume that you intend to go forward with publication of this material, and will file suit in a Georgia court to prevent it Se e Ke v. Hustler Magazine . Inc ., 465 U.S. 770 (1984) . Please be governed accordingly . Yours very truly,

Richard P . Decker
For DECKER, HAi .LMAN, BARBER & BIUGas

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XHIBIT D

Iipsitz Green Sdnne CarnbriaLL,
Attorneys at Law 42 Delaware Ave r wx, Suite 3 I0, BuTfala` New York 14202-3924 P7163491333 F 7i6 85S 1580 (Nwi ioTs.rvbd wwnnr Iglawtom
Pau13. Cnnkrsa k' J ernes T Srlma Fiu4aitL Greenman PsUidc C Me* Mkheel Schisvaie Lararx Kaily

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William M Polgenbaum Joseph) GunAowsto Wtlwd P VV%mhe[k . Jr Meek L 9Wima kv B . rry Nehori 6oYert CMatophr X MVttmgly RoeeK L aoeanae 7NOrcro M N4rwre John A- Colins

George E. Wmedel, Jr' NNd rel P Stu m ret '
F. Rdna Stuamm Helm Ourkt Paenon Paull Gfesiik

Richard P. Decker, Esq. Decker, Hallman, Barber & Briggs Attorneys at Law 260 Peachtree Street, N.W. Suite 1700 Atlanta, GA 30303

RRE``

fAlillaTy

25, 2008

JAN 2 0 208

Via UPS O VCrlll~lt

ModwN R Wrre mMnaAcl Gregory P Kr,r MMrY A Smkh M. aaw,neli

Re : Nancy Toffoloni Benoit Photographs Dear Mr. Decker : This firm is retained counsel for LFP Publishing Gro up, LLC ("TIFF), the publisher of Hustler Magazine. We have been asked to respond to your letter to LFP dated January 16, 2008 with regard to the publication of nude and partially nude photographs of the late Nancy Benoit. We understand that in this matter, you are represent ing Maureen Toffoloni and/or the Estate of Nancy Benoit . In said letter, you protest the publication by Hustler Magazine of said photos of Nancy Benoit, and demand that Hustler agree not to publish same. On behalf of LFP and Hustler, we must respectfully deny your request .

Joseph JL Manna ihfipSaffWi Robert E L dos z"vu HoL**+an Thmas C Bumharn WI W.m P. Mount Davld C 7rtrnerm sn twen w .Feger vmtdc e. snsn. han Jonruun V+c grown ~ Arts A. gall ey John M I.IdNat khal Rad*M C twny a Arw,UewD, iCe}vx Joseph M- Trim Daniel M IGlfelea PaMdc J. Madcey OF COUNSEL Cad A. Green siparie W. Sa l"
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In your letter, you first indicate that your client would have legal title in any copyright to a likeness of Nancy Benoit This contention is erroneous. The copyright in the photographs Sdram ~ ttan belongs t o the phatograpberlvideagraphec who originally took the pictures as their author Word ScatM R w a° pursuant to the United States Copyright Act, 17 U.S.C. § 101 et seq . Hexa, LFP is Sd~a' x informed that the subject photographs were images made from a motion picture video, for u W which Nancy Benoit clearly and voluntarily posed . LFP has obtained the permission of the COMMMISATM
WECIAL COU SM

,

Roger Denk

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PWKW It trnen

9eyrrpur L idwNor f951-1986

,~ copyright holder to publish said photographs, and therefore your client has no copyright claim herein.

PanE. 9% M · AMo aAdned b Oarkt d [a Wmtia ,AW admkad In flo rlda
AIM .a Wtna ti uare~,. ~ AJw w~aaw ok xo

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You further assert that any use of the likeness of Nancy Benoit is "proh ibited, uuxau#horizsd, and denied," citing Martin Luther Kind Jr . Center for Social Change Inc . V. . American Heritage Products. Inc.. 250 Ga. 135 (1982), and That unless Hustler agrees not to so publish, you will file suit in a Georgia court, citing Keeton v. Hustler Magazine. Inc ., _ 465 U .S . 770 (1984). The Supreme Court's Keeton decision concerns personal j urisdic tionE, statutes of limitations, and related procedural issues, rather than substantive rights . It is accordingly

B UFF A LO

a M HE R 57

CHEEKTOWAGA

F R EDO N I A

N EW YORK CITY BEVERLY H ILLS

Richard P . Decker , Esq . Decker, Hallrnan, Barber & Briggs Page 2 January 25 , 2008

Lipsitz Green Scime Cambrian

<47

not relevant to this response . The substantive opinion of the Georgia Supreme Court in the King case is relevant, but does not serve to support your client's position . As you are aware, the recent tragic death of Nancy Benoit, appamtly murdered by her husband in their home, made national headlines in the newspapers, and was extensively covered by both network and cable television news shows. Aside from her husband Chris, Nancy herself had been a popular personality in the wrestling world, and was well -known by the national wresting organizations and wrestling fans throughout the country . She was accordingly a public figure and celebrity, and her gruesome death was unquestionably of great public interest . Accordingly, Georgia, the State of her domicile, would afford her a right of publicity, not to have her name or photograph used "for the financial gain of the user without [her] conmt, where such use is not authorized as an exercise of fivedom of the press ." 250 Ga. at 143 . Here, there is no such violation of Nancy Benoit's right of publicity by publication of her likeness in Hustler Magazine . The photo of Ms. Benoit as a beautiful young woman in her twenties are being used to illustrate a legitimate and serious news article in the Magazine on her life, including her early career, her attempts at modeling, her various marriages, and her attempts to pose for Penthouse Magazine. Thus, we are not dealing with a commercial exploitation of Ms . Benoit's image for monetary gain, but as part of a legitimate news story. Such use by Hustler Magazine is clearly authorized and protected by the First Amendment to the United States Constitution, as is expressly recognized by the Georgia Supreme Court in its King decision . Such lawful publication of photos of a deceased public figure in a matter of public interest is sharply contrasted with the clearly unauthorized and unlawful appropriation of the property rights in a decedent's image for commercial exploitation, as was seen in the facts of the Ki,~gn case. Recognizing the First Amendment right of publication by a free press in matters of public interest, as opposed to mere advertisements or commercial use, the Georgia Supreme Court in King itself acknowledged the press' right of free expression in this country . To the extent that your client may attempt to assert some kind of "privacy' right in the images of Nancy Benoit, privacy rights are designed to protect values of human dignity . However, it is long-established law that such privacy rights end with the death of the person whose privacy was allegedly invaded . To summarize, your client does not own any copyright interest in the photographs of Nancy Benoit, and the use of her photographs in connection with a legitimate news article of public interest in Hustler Magazine does not afford any right of publicity, and would otherwise be precluded by the freedom of the press contained in the First Amendment .

BU FF A LO

AM FtE R SY

CkEE K TO W AG A

P REG OWI A

N EW YO RK CITY BEVERLY HILLS

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Richard P . Decker, Esq. January 25, 2008

Lip= Green SGime Cambria .,,

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Decker, Hallixian, Barber & Briggs Page 3

While we certainly sympathize with your client's grief as to the senseless murder of Nancy Benoit, Hustler Magazine has every legal right to publish said photographs as part of a legitimate news article on her life and death, as a matter of substantial public interest . Sincerely,
LIPSTTZ GREEN SGIME CAMBRIA LLP Attorneys for Hustler Publishing Group, LLC

Cembria, Jr.,. Esq

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F:/ADULTIl ]'740/0964/08o/Ueck0125 Writer ' s extension: 344 W 'riter's Fax: [phone] Writer ' s Email : p [e-mail]

BUFFALO

AMH ER5T

C HEEKT OWAGA

F ll E0 0 N 1 A

NEW YORK

CITY

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EXHIBIT E

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IN THE SUPERIOR COURT OF FAYETTE COUNTY STATE OF GEORGIA MAUREEN TOFFOLONI, as Administrator and Personal Representative of the ESTATE OF NANCY E . BENOIT,

Civil Action File No .

V.

Plaintiff

~ aO T V
0-

LFP PUBLISHING GROUP, LLC ., d/b/a Hustler Magazine, MARK SAMANSKY, an individual, And other distributors and sellers of Hustler Magazine, as Defendants X, Y, and Z, Defendants .

MOTION FOR TEMPORARY RESTRAINING ORDER
COMES NOW Plaintiff Maureen Toffoloni, as Administrator and Personal Representative ofthe Estate ofNancy E . Beno i t and moves th is Court, pursuant to O . C .G .A. § 9-11-65 for an Order temporarily restraining and enjoining Defendants from publishing and/or selling and nude or partially nude photographs of Nancy Benoit . As grounds for this Motion, Plaintiff shows that unless Defendants are prevented from publishing these photographs, immediate and irreparable farm will result . This harm is more fully detailed in Plaintiffs Verified Complaint and supporting exhibits and in Plaintiff's Brief in Support of this Motion. Plaintiff intends to give notice of this Motion, by way of facsimile and phone call, to counsel for Defendants .

WHEREFORE, Plaintiff respectfully prays that this Motion be granted and that Defendants be temporarily restrained from publishing or selling nude or part ially nude photographs of Nancy Benoit.

Respectfully submitted this y ~ ay of February, 2008 .

Richard P . Decker

State Bar of Georgia No .215600 DECKER, HALLMAN, BARBER & BRIGGS Attorneys for Plaintiff

260 Peachtree Street, N .W . Suite 1700

Atlanta, Georgia 30303 [phone]
2 3052 wpd

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IN THE SUPERIOR COURT OF FAYETTE COUNTY STATE OF GEORGIA MAUREEN TOFFOLONI, as Administrator and Personal Representative of the ESTATE OF NANCY E. BENOIT,
V.

} j Civil Action File No .

Plaintiff

LFP PUBLISHING GROUP, LLC ., D/ b/ a Hustler Magazine, MARK SAMANSKY, an individual, And other distributors and sellers of Hustler Magazine, as Defendants X, Y, and Z,

I'VE
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Defendants .

1

BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER COMES NOW Plaintiff Maureen Toffoloni, as Administrator and Personal Representative of the Estate of Nancy E . Benoit and files this Brief in Support of Plaintiff s Moti on for Temporary Restraining Order, and shows the Court as follows :

I . FACTS
Until her untimely death in June 2007, Nancy Benoit had a career as a model and professional female wrestler . See Verified Complaint 115 .

Defendant LFP Publishing Group, L L C ("Defendant LFP") is the publisher
of"Hustler Magazine" . Hustler Magazine is a pornographic magazine, published frequently, upon information and belief, on a monthly basis . The majority of the content of each

monthly magazine is graphic and sexual photographs of nude women . See Verified Complaint 12, 7 . Defendant Mark Samansky is a photographer who photographed and videotaped Nancy Benoit approximately 20 years ago . See Verified Complaint 110 . The Defendants acting as "Hustler Magazine" intend to publish and sell, or

have already published and sold in the so-called "March" issue of Hustler Magazine, nude and partially nude photographs of Nancy Benoit . See Verified Complaint 18 . These
pornographic photographs, Exhibit A to Plaintiff's Verified Complaint, are filed with the Court under seal . Without Nancy's permiss ion, defendant Samansky sold the photographs and/or still images from the videotape to Hustler Magazine for publication . Plaintiff does not know the amount of money that changed hands between Hustler Magazine and Mark Samansky . See Verified Complaint x(17 . The photographs that Hustler Magazine intends to publish were created from a videotape made while Nancy Benoit, then known as Nancy Daus, was posing for photographs approximately 20 years ago . See Verified Complaint 19 . Nancy Benoit was aware that she was being videotaped but did not give permission to Defendant Samansky to use the videotape in any way. See Verified Complaint I 11 ; Affidavit of James D aus, I 6 . After the photographic session was over, Nancy Benoit immediately decided she did not

want to have the photographs published, and she refused to give the photographer
permission to do so. She Verified Complaint 1 12 ; Affidavit of James Daus, 1 7 . Nancy
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Benoit insisted that the photographer immediately destroy all photographs ofher . Defendant Samansky represented to Nancy Benoit that all photographs and the videotape had been destroyed . Nancy Benoit believed that all photographs of her had been destroyed within a

short time after they were made . ee Verified Complaint 113 ; Affidavit of James Daus, I
8. Nancy Benoit did not want to have nude or partially nude photographs of herself published. See Verified Complaint T 14 ; Affidav i t of James Daus, 1 9 .

Defendant Samanksy lied to Nancy and James Daus and did not destroy the
v ideotape ofNancy Benoit. Defendant Samansky apparently created still photographs from

the videotape and currently has possess ion of the videotape and photog raphs . See Verified
Complaint 1 16 . On January 16, 2008, Counsel for Plaintiff sent a letter to Hustler Magazine requesting that Hustler refrain from publishing the photographs because publication of the photographs would be a violation of Nancy Benoit's right of publicity . See Verified Complaint 118 and Exhibit C thereto . On January 25, 2008, counsel for Defendant UP responded to counsel for Plaintiff indicating that Hustler denied Plaintiff s request and intended to publish nude ancd partially nude photographs in its March issue . See Verified Complaint 119 and Exhibit D thereto .

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Hustler Magazine has already begun advertising the nude images of Nancy Benoit to its customers. Wrestle Zone, an online wrestling enthusiast website, contains a fan posting about the upcoming "March" issue of Hustler Magazine and a link to other photographs of fancy Benoit. See Veri fied Complaint 121 and Exhibit E thereto . II. ,ARGUMENT AND CL ATW OF AUTHORITY T N Pursuant to O .C .G.A. §9-11-65, the Court may issue a temporary restraining

order when "it clearly appears from specific facts shown by affidavit or by verified
complaint that immediate and irreparable injury, loss, or damage will result to the applicant . . ." Publication of these nude and/or partially nude photographs would cause immediate and irreparable harm to Nancy Benoit's right of publicity . See T h e Martin Luther Kin Jr C ter for Social Char Inc. v . Am rican Heritage Products Inc . , 250 Ga. 135 , 296 S .E .2d 697 (19 8 2) .

If the photographs of Nancy Benoit are published, Plaintiff will be immediately and irreparably harmed, in that the photographs cannot be unpublished. Once
they are published, the public w i ll always be able to see them . Furthermore, Plaintiff intends to file a wrongful death action in this Court on behalf of the Estate of Nancy Benoit concerning the murder of Nancy Benoit and her minor child Daniel Benoit . See Verified

Complaint 1 24 . If the photographs are published, Plaintiff will be immediately and
irreparably harmed because the photographs may be seen by, and unfairly influence, the

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