Toffoloni v. LFP Publishing Group, LLC

Filing 168

RESPONSE re 160 Statement of Material Facts filed by LFP Publishing Group, LLC. (Bauer, S.)

Toffoloni v. LFP Publishing Group, LLC

Doc. 16

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,, Defendant.

CASE NO. 1:08-cv-00421-TWT

DEFENDANT LFP PUBLISHING GROUP, LLC'S RESPONSE TO PLAINTIFF'S STATEMENT OF ADDITIONAL MATERIAL FACTS NOW COMES Defendant LFP Publishing Group, LLC, d/b/a Hustler Magazine, et al. ("LFP") and responds to Plaintiff's Statement of Additional Material Facts, Docket Index 160, as follows: 1. Neither Mr. Samanky [sic], Mr. Otten, Mr. Helton, Defendant, nor

any other party ever obtained a release from Nancy Benoit or her Estate allowing for the use of her nude image in Hustler Magazine or any other publication. See Deposition of James Daus, p. 18, lines 8-10, p. 42, lines 305.

Dockets.Justia.com

RESPONSE: UNDISPUTED but immaterial. LFP admits that it published the images without obtaining a release from Ms. Benoit or her Estate but shows that it was not necessary for LFP to obtain such a release because the images were published as part of an exclusive news and entertainment story about Ms. Benoit. (LFP's Statement of Undisputed Material Facts, Docket Index 124-3, ("Facts") at ¶¶ 40-41, 63, 74-77 & 82.) 2. Defendant was fully aware of the fact that it did not have a release to

publish Nancy Benoit's image at the time it made the decision to publish such images. See LFP 0039, attached as Exhibit A to the Affidavit of Richard P. Decker filed contemporaneously herewith. RESPONSE: UNDISPUTED but immaterial. LFP admits that it was fully aware of the fact that it did not have a release to publish the Benoit images but shows that it was not necessary for LFP to obtain such a release because the images were published as part of an exclusive news and entertainment story about Ms. Benoit. (LFP's Statement of Undisputed Material Facts, Docket Index 124-3, ("Facts") at ¶¶ 40-41, 63, 74-77 & 82.) Respectfully submitted this 17th day of September 2010.

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/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) 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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CERTIFICATE OF SERVICE This is to certify that I have this day filed the within and foregoing DEFENDANT LFP PUBLISHING GROUP, LLC'S RESPONSE TO PLAINTIFF'S STATEMENT OF ADDITIONAL MATERIAL FACTS 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 17th day of September 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:5251040.1

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