Toffoloni v. LFP Publishing Group, LLC

Filing 124

MOTION for Summary Judgment with Brief In Support by LFP Publishing Group, LLC. (Attachments: # 1 Brief, # 2 Appendix MANUALLY FILED UNDER SEAL, # 3 Statement of Material Facts MANUALLY FILED UNDER SEAL)(Bauer, S.) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.--

Toffoloni v. LFP Publishing Group, LLC

Doc. 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

MAUREEN TOFFOLONI, as Administrator and Personal Representative of the ESTATE OF NANCY E. BENOIT, Plaintiff, vs. LFP PUBLISHING GROUP, LLC, d/b/a Hustler Magazine, et al,, Defendants. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT NOW COMES Defendant LFP Publishing Group, LLC ("LFP") and respectfully moves this Honorable Court for the entry of summary judgment in its favor on Plaintiff's right of publicity claim or, in the alternative, on Plaintiff's request for punitive damages, pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1. In support of its Motion, LFP relies on its Brief in Support, filed herewith, and its LR 56.1B Statement of Undisputed Material Facts and Appendix of Evidence to be manually filed under seal pursuant to the Court's December 22, 2009 Protective Order, Docket Index 70. CASE NO. 1:08-cv-00421-TWT

Dockets.Justia.com

LFP's motion for summary judgment respectfully asks the Court to revisit the Eleventh Circuit's analysis of the "newsworthiness" privilege with the benefit of a factual record fully developed through discovery and, in the alternative, to grant summary judgment to LFP on Plaintiff's request for punitive damages should her underlying right of publicity claim survive this motion. The fully developed factual record reveals that Plaintiff's claims must fail because they are subject to the "newsworthy" exception to the Georgia common law right of publicity. As a matter of settled law, the Eleventh Circuit's ruling on LFP's Rule 12(b)(6) motion to dismiss did not and could not address the factual merits of Plaintiff's claim, or the application of the "newsworthy" exception thereto, which matters may only be decided on a sufficiently developed factual record. Because there is no genuine issue with respect to the material fact that LFP's publication of the images of Nancy Benoit was part of an exclusive entertainment news story typical of the nature and subject matter of news and entertainment reporting pervasive in mainstream American media, summary judgment for LFP is appropriate. The undisputed record is also clear that, given the context described above, no reasonable jury could conclude that the publisher and editor of Hustler did not act in the sincere and reasonable belief that publication of the Benoit images was constitutionally-protected. Because the record provides no basis from

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a which a jury could conclude that LFP acted with the requisite malice and intent necessary to support an award of punitive damages under Georgia law, even if Hustler's publication of the Benoit images was not constitutionally-privileged, summary judgment to LFP is appropriate on Plaintiff's claim for punitive damages. WHEREFORE, LFP respectfully prays that this Court inquire into and sustain this Motion, and enter judgment in its favor on Plaintiff's right of publicity claim or, in the alternative, on Plaintiff's claim for punitive damages. Respectfully submitted this 30th day of July 2010.

/s/ S. Derek Bauer James C. Rawls Georgia Bar No. 596050 Barry J. Armstrong Georgia Bar No. 022055 S. Derek Bauer Georgia Bar No. 042537 Darrell J. Solomon Georgia Bar No. 305922 McKENNA LONG & ALDRIDGE LLP 303 Peachtree Street, NE, Suite 5300 Atlanta, Georgia 30308 [phone] [phone] (facsimile)

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Pro hac vice: Paul J. Cambria, Jr. Jeffrey Reina William M. Feigenbaum LIPSITZ GREEN SCIME CAMBRIA LLP 42 Delaware Avenue, Suite 120 Buffalo, New York 14202-3924 [phone] [phone] (facsimile) Attorneys for LFP Publishing Group, LLC

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CERTIFICATION OF COUNSEL Pursuant to N.D. Ga. Local Rule 7.1D, I hereby certify that this document is submitted in Times New Roman 14 point type as required by N.D. Ga. Local Rule 5.1B. /s/ S. Derek Bauer S. Derek Bauer Georgia Bar No. 042539 CERTIFICATE OF SERVICE This is to certify that I have this day filed the within and foregoing DEFENDANT'S MOTION FOR SUMMARY JUDGMENT via the CM/ECF system which will automatically send notification to Plaintiff's attorneys of record, who are participants in the CM/ECF system. This 30th day of July 2010.

/s/ S. Derek Bauer S. Derek Bauer MCKENNA LONG & ALDRIDGE LLP 303 Peachtree Street, NE, Suite 5300 Atlanta, Georgia 30308 [phone] [phone] (facsimile)
ATLANTA:5242603.2

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