Martin v. Living Essentials, LLC
Filing
17
MEMORANDUM Opinion and Order: For the reasons explained in the Memorandum Opinion and Order, the defendant's motion to dismiss 10 is granted with prejudice. Civil case terminated. Signed by the Honorable John J. Tharp, Jr on 2/1/2016.Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHANNES T. MARTIN,
Plaintiff,
v.
LIVING ESSENTIALS, LLC,
Defendant.
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No. 15 C 01647
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Oscar Wilde once observed: “It is a curious fact that people are never so trivial as when
they take themselves seriously.” Case in point: Plaintiff Johannes T. (“Ted”) Martin claims
invasion of privacy and false advertising based on a television commercial in which an actor
plugging an energy drink claims to have accomplished a series of seemingly impossible feats, all
within the five-hour boost of energy the product purports to provide. These include mastering
origami “while beating the record for Hacky Sack.” Am. Compl. 2, ECF No. 8. Martin, who
holds the world record for most consecutive kicks (no knees) in the footbag (i.e. hacky sack)
singles category and has held that record since 1988 (with the exception of a brief period of 50
days in 1997), takes umbrage at the suggestion that consuming an energy drink could enable
someone to break a record—his record—that doubtless requires a great deal of athleticism and
countless hours of practice. He sees no humor in what he perceives to be an effort to exploit his
achievement. But, whether Martin himself finds it humorous or not, the ad is clearly a comedic
farce and in no way trades on Martin’s identity. Were he to take a step back, Martin might even
see that, if anything, the ad promotes the game to which he has given so much of himself
(including, perhaps, his sense of humor). In any event, the amended complaint asserts no
plausible cause of action and, for the reasons set forth more fully below, is dismissed with
prejudice.
BACKGROUND 1
Martin brings claims against Defendant Living Essentials, LLC (“Living Essentials”)
under the Illinois Right to Publicity Act (“IRPA”), 765 ILCS 1075/1 et seq., and the Lanham
Act, 15 U.S.C. § 1125(a). Currently before the Court is Living Essential’s motion to dismiss the
Amended Complaint in its entirety. ECF No. 10. At issue is a commercial for an energy drink
called “5-hour ENERGY” (“5HE”) in which an actor claims that “in the last 5 hours” he:
disproved the theory of relativity; swam the English Channel and back; found Bigfoot; and
mastered origami while beating “the record for Hacky Sack,” all because he took a 5HE shot
(“the Commercial”). 2 Mem. in Supp. Ex. A, ECF No. 12. The specific portion of the Commercial
that is at issue depicts a caucasian male actor kicking two hacky sacks while using his hands to
construct an elaborate origami figure. Id. The Commercial also displays small-print text on the
bottom of the screen stating, “For comedic purposes only. Not actual results[,]” and “Not proven
to improve physical performance, dexterity or endurance.” Id. Martin takes issue with the
statement in the Commercial that the actor beat the record for hacky sack because he consumed
1
For purposes of this motion to dismiss, the Court takes as true the following facts from
Martin’s Amended Complaint. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
2
The language of the Commercial is taken from a video of the Commercial included with
Living Essentials’ motion to dismiss. Mem. in Supp. Ex. A, ECF No. 12. Documents (or in this
case, a film clip) that a defendant attaches to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff’s complaint and are central to his claim. See
Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). Thus, the
Court will consider the entire 5HE Commercial as part of the pleadings in analyzing Living
Essentials’ motion to dismiss. Moreover, because the Lanham Act requires considering the
alleged false statements in context, the Court will look to the entire Commercial as context. See
Schering–Plough Healthcare Prods. v. Schwarz Pharma, Inc., 586 F.3d 500, 513 (7th Cir. 2009).
2
5HE, asserting that the statement is a false representation of fact and that the actor assumed his
identity as the hacky sack world record holder, in violation of the IRPA and the Lanham Act.
DISCUSSION
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff’s “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). A complaint must state a “plausible claim for relief,” and “where the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief’” under
Rule 8. Iqbal. at 679. Although a court must accept all of the plaintiff’s factual allegations as true
when reviewing the complaint, conclusory allegations merely restating the elements of a cause of
action do not receive this presumption: “A complaint must allege facts to support a cause of
action’s basic elements; the plaintiff is required to do at least that much.” Adams v. City of
Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014).
I.
Jurisdiction
Federal Rule of Civil Procedure 8 requires that a complaint contain “a short and plain
statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). Martin pleaded in
his Amended Complaint that, “The jurisdiction of this Court is invoked pursuant to 28 U.S.C.
§ 1332.” Am. Compl. 2. While this statement alone is not sufficient to state the grounds for
jurisdiction, Martin has adequately supplemented the jurisdictional statement in his response to
the motion to dismiss, stating, “The Defendant is based in Michigan and I am a long term
resident of the Northern District of Illinois. I seek damages in an amount exceeding $75,000.”
Resp. 15, ECF No. 15. Moreover, while Martin does not cite the statute, he correctly states that
this Court has original jurisdiction over a Lanham Act case. Resp. 14; see 28 U.S.C. § 1331.
3
Thus, Martin has fulfilled the requirements of Fed. R. Civ. P. 8(a)(1), and this Court has
jurisdiction over this case.
II.
IRPA Claim
A.
Statute of Limitations
While a statute of limitations defense is not normally part of a Rule 12(b)(6) motion,
when the plaintiff’s allegations reveal that his claim is barred by a relevant statute of limitations,
the complaint may be dismissed for failure to state a claim. Logan v. Wilkins, 644 F.3d 577, 582
(7th Cir. 2011). IRPA claims are subject to a one-year statute of limitations, which begins to
accrue at the time of the first publication of the allegedly infringing publication. Blair v. Nevada
Landing Partnership, 859 N.E.2d 1188, 1192 (Ill. App. Ct. 2006) (“The Right of Publicity Act
does not identify a specific statute of limitations. However, . . . we find applicable the one-year
statute of limitations that pertained to the common-law tort [of appropriation of likeness].”). 3
Martin’s Amended Complaint references a CBS news piece about Living Essentials that aired
November 16, 2012. Am. Compl. 3. Martin then states that “[Living Essentials] had just aired the
3
Martin asserts that the general five-year statute of limitations applicable to “property”
claims (see 735 ILCS 5/13-205) applies to claims under the Right of Privacy Act because the
IRPA is codified in Chapter 765 of the Illinois Compiled Statutes, which is titled “Property.”
This argument ignores the fact that, prior to enactment of the IRPA, the one-year statute of
limitation claim applicable to common law claims involving “publication of matter violating the
right of privacy” included right-of-publicity, also known as appropriation-of-likeness, claims.
Blair, 859 N.E.2d at 1192. The IRPA codified the common law right of publicity claim. Id.
(IRPA sets forth “essentially the same three elements that were required for a common-law claim
of appropriation of likeness”). Accordingly, in Blair, the Illinois Appellate Court expressly held
that the same statutory limitations period that applied to the common law right-of-publication
claim also applied to its statutory replacement. The Court is aware of no contrary authority and
when applying or interpreting Illinois state law, the decisions of the intermediate appellate courts
control “unless there are persuasive indications that the state supreme court would decide the
issue differently.” Judson Atkinson Candlies, Inc. v. Kenray Assocs., Inc., 719 F.3d 635, 639-40
(7th Cir. 2013). There are no such indications here. See also Berry v. Ford Modeling Agency,
2012 WL 5470289, at *3 (N.D. Ill. Nov. 9, 2012) (expressly rejecting argument that five-year
statute of limitations applies to IRPA claims and citing cases).
4
‘Doctor’s review’ commercial and ‘The last five hours: bigfoot . . . ’ commercial [the
Commercial] was released soon after.” Id. (emphasis added). Martin filed his original Complaint
on February 24, 2015. Compl., ECF No. 1. For Martin’s Complaint to be timely under the statute
of limitations, the first publication date of the allegedly infringing Commercial would have to
have been on or after February 24, 2014. Since Martin’s Amended Complaint states that the
Commercial aired “soon after” November 16, 2012 (regardless of whether “soon after” means a
few days, a few weeks, or even a few months), well over a year had passed since the date of the
Commercial’s first publication when Martin filed his Complaint. Martin’s IRPA claim against
Living Essentials is, therefore, dismissed as time-barred. 4
B.
Use of Identity
Even if Martin’s IRPA claim were not time-barred, it could not succeed. The IRPA
protects the exploitation of one’s identity for commercial purposes without consent. The premise
of Martin’s argument is that by claiming that the hacky sack record holder used 5HE to set the
record, the Commercial effectively says that Martin used 5HE to set his record. Living Essentials
points out that the Commercial never uses Martin’s name, or likeness, or voice, but IRPA’s
scope extends to the unauthorized use of “any attribute of an individual.” 765 ILCS 1075/5.
4
There is an exception to the general rule for the initiation of the statute of limitations
period when the tort at issue involves a continuing or repeated injury. Blair, 859 N.E.2d at 1192
(“Under the ‘continuing violation rule,’ where a tort involves a continuing or repeated injury the
limitations period does not begin to run until the date of the last injury or the date the tortious
acts cease.”). Where there is a single overt act from which subsequent damages may flow,
however, the statute begins to run on the date the defendant invaded the plaintiff’s interest and
inflicted injury, and this is so despite the continuing nature of the injury. Id. (citing Feltmeier v.
Feltmeier, 798 N.E.2d 75, 85 (Ill. 2003)). In Blair, the court held that although a picture of the
plaintiff was used repeatedly over a period of time, it was used for the single purpose of
advertising and therefore did not “denote a continuing course of conduct for which the
limitations period can be tolled.” Blair, 859 N.E.2d at 1193. Although Martin does not assert the
“continuing violation rule,” the Court notes that the repeated airing of the Commercial still
constitutes a single overt act, such that the limitations period does not toll.
5
Martin contends that “the record for Hacky Sack” is a phrase that identifies him particularly, but
the phrase is far too ambiguous to do so. The language and graphic of the Commercial depict
vague generalities regarding “the record for Hacky Sack” and do not clearly indicate that
someone has broken the specific record that Martin set (or any other particular hacky sack
record). Living Essentials points to the diverse array of hacky sack records (at least 14 different
records, Mem. in Supp. 8 n.7), arguing that Martin’s assertion that he holds the record is a
mischaracterization. Id. 7-8. The Commercial, moreover, depicts a man kicking two footbags,
not one. Id. Ex. A. Whether “the record” the fictitious consumer of 5HE claims to have broken is
open singles footbag consecutive (Martin’s record), open singles timed footbag consecutive,
footbag (consecutive eclipses), or footbag (consecutive diving butterflies) or any of the other ten
footbag records listed as a Footbag Guinness World Record is not evident in the Commercial.
See id. Ex. C. 5 Martin notes the many different types of footbag records in his response,
admitting that there “are actually more consecutive records than listed” on the Guinness World
Records website. Resp. 5. He focuses on the open five-minute timed record and the record for
juggling two footbags with one foot, then discusses the detailed differences between these two
records—the difference between “consecutive” records and “freestyle” records, the difference
between “kicks” and “tricks” such as “touches” or “stalls,” the difference between “kicks” and
“strikes,” and when knees can and cannot be used. Id. 5-6. In describing the wide array of
records and the specific knowledge necessary to discern between the records, Martin effectively
concedes the ambiguity of a reference to “the Hacky Sack record.”
5
The Court may take judicial notice of the contents of a website. LaBella Winnetka, Inc.
v. Vill. of Winnetka, 628 F.3d 937, 944 n.3 (7th Cir. 2010). Further, Martin does not dispute that
the records reflected on the Guinness site are authentic. Indeed, he relies on the site as evidence
of the authenticity of his own record. See Resp. 4-5.
6
But all of this misses the more fundamental point. The Commercial is a joke, a comedic
farce. The claims it makes are not intended to be taken as true—and to the extent that there could
be any doubt on that score, the commercial includes a clear disclaimer advising the most gullible
among us that these are “not actual results.” No one could watch the Commercial and reasonably
conclude that the product spokesman actually holds “the record for Hacky Sack,” much less that
Ted Martin, who is listed in the Guinness Book of Records as holding just one of the many listed
hacky sack records, is the person in (or portrayed by an actor in) the Commercial. Moreover,
even if someone identified Martin as the holder of the record to which the Commercial refers, the
Commercial portrays someone who not only set that hacky sack record, but also accomplished a
series of additional equally improbable feats. If you didn’t get the joke, and wanted to find out
who this remarkable person is, you would also have to find out who had disproved relativity, and
swum the English Channel, and found Big Foot, all in the same afternoon. Martin neither claims
to have done these other things nor explains why anyone would believe that, in addition to
unrivaled skill at keeping a footbag aloft, he possesses genius surpassing that of Einstein, twice
the endurance of Diana Nyad, and hunting skills so refined that he is able to locate even mythical
creatures. The Commercial’s implication is to the contrary: whoever this remarkable human may
be, he is someone other than Ted Martin (or Einstein, Nyad, or the biggest of big-game hunters,
all of whom the Commercial portrays as being left in the wake of anyone who might consume a
dose of 5HE).
To the maxim de minimis non curat lex, then, let us add a complementary proscription:
defectum humoris non curat lex—the law does not reward humorlessness. Martin’s premise that
the Commercial exploits his identity because someone might believe that the actor (or whoever
he portrays) actually broke Martin’s record depends on an interpretation so blind to its comedic
7
nature that it is unreasonable and therefore beyond the law’s protection. No reasonable person
could conclude that the spokesman in the Commercial was actually Ted Martin, or even an actor
playing Ted Martin. Accordingly, the Commercial does not use Martin’s identity and his IRPA
claim must be denied.
III.
Lanham Act Claim
Martin’s false advertising claim under the Lanham Act fails for essentially the same
reason: The Commercial is an obvious farce that would not lead anyone to believe that Martin, or
anyone else, had actually accomplished all of the remarkable feats described. Even
unsophisticated consumers would get the joke. 6
6
That the Commercial does not implicate Martin’s identity also means that Martin is not
even authorized to pursue a false advertising claim. In Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377 (2014), the Supreme Court held that “to come within the zone
of interests in a suit for false advertising under § 1125(a), a plaintiff must allege an injury to a
commercial interest in reputation or sales.” Id. at 1390. As discussed further below, Martin
asserts no such commercial interests. He is not a competitor of Living Essentials and is not
otherwise involved in any commercial activity.
Although it has argued that Martin failed, as a matter of pleading, to adequately allege
harm and therefore to state a claim, Living Essentials has not argued that Martin’s claim does not
fall within the Lanham Act’s zone of interest. As the Supreme Court explained in Lexmark,
notwithstanding that the question of whether a plaintiff is authorized to sue based on the scope of
a statute’s substantive and remedial purposes has often been referred to as prudential or statutory
“standing,” the question is non-jurisdictional and can therefore be waived. Id. at 1387 n.4
(question is non-jurisdictional); American Institute of Certified Public Accountants v. Internal
Revenue Service, 804 F.3d 1193, 1193 (D.C. Cir. 2015) (because non-jurisdictional, the question
can be waived). Having failed to assert this argument, Living Essentials has waived it.
8
Section 43(a) of the Lanham Act provides, in pertinent part that:
Any person who, on or in connection with any goods or services
. . . uses in commerce . . . any . . . false or misleading description of
fact, or false or misleading representation of fact, which—
...
(B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or her
or another person’s goods, services, or commercial activities, shall
be liable in a civil action by any person who believes that he or she
is or is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1).
In assessing false advertising claims under § 43 of the Lanham Act, it is often said that
where a statement is literally false, a plaintiff need not show that the statement actually deceived
consumers; evidence of consumer confusion is required only where the actionable statement is
literally true or ambiguous. There is, in other words, a presumption of consumer confusion where
statements are literally false; where they are not, evidence of confusion must be adduced. B.
Sanfield, Inc. v. Finlay Fine Jewelry Corp., 168 F.3d 967, 971-72 (7th Cir. 1999); Avila v. Rubin,
84 F.3d 222 (7th Cir. 1996); see also Merck Eprova AG v. Gnosis S.p.A, 760 F.3d 247, 255 (2d
Cir. 2014).
As the Seventh Circuit has explained, however, the doctrine of “literal falsity” does not
actually require literal falsity: “‘literal’ must be understood in the common colloquial sense in
which Americans (not realizing, or perhaps not caring, that they are making Fowler turn in his
grave) say things like ‘I am literally out of my mind.’” Schering–Plough Healthcare Prods., Inc.
v. Schwarz Pharma, Inc., 586 F.3d 500, 512–13 (7th Cir. 2009). Whether a statement is
“literally” false or not, its actual meaning, and the risk that it may confuse consumers, depends
9
on context. Id. (“[T]he meaning of the alleged literal falsehood must be considered in context
and with reference to the audience to which the statement is addressed”).
Living Essentials maintains that the Commercial is not literally false because it is
ambiguous as to which hacky sack record it referred. “[O]nly an unambiguous message can be
literally false,” it argues; “if the language or graphic is susceptible to more than one reasonable
interpretation, the advertisement cannot be literally false.” Mem. in Supp. 9 (quoting Time
Warner Cable, Inc., 497 F.3d at 158). In this case, however, the Commercial’s ambiguity does
not mean it is not literally false—the claim that a 5HE consumer broke any hacky sack record
(while mastering origami, no less) is false. Here, there is no interpretation that renders the claim
about breaking the hacky sack record truthful—the statement wasn’t intended to be truthful
because the Commercial is a farce. It is, in that sense, literally false.
That does not mean, however, that it is actionable without evidence of consumer
confusion. “Many literally false statements are not deceptive.” Schering-Plough, 586 F.3d at
512. Among them are statements of puffery and exaggeration so extreme that we can confidently
say that no one could be fooled by them. Id. (“if no one is or could be fooled, no one is or could
be hurt”). A leading authority on trademarks has defined puffery as “grossly exaggerated
advertising claims such as blustering and boasting which no reasonable buyer would believe was
true” and is therefore “not actionable under Lanham Act § 43(a).” 4 J. Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition § 27.38 (4th ed. 1997) (adding further that
“silly and unbelievable print and television advertising falls into this category”). Indeed, if a
representation “is so grossly exaggerated that no reasonable buyer would take it at face value,
there is no danger of consumer deception and hence, no basis for a false advertising claim.” Time
Warner Cable, 497 F.3d at 159 (rejecting false advertising claim based on grossly exaggerated
10
depiction of cable television image quality). This is particularly so when such statements are
made with disclaimers highlighting their intended farcical nature. Faegre & Benson, LLP v.
Purdy, 367 F. Supp. 2d 1238, 1244 (D. Minn. 2005) (disclaimers on webpage “should alert the
consumer that the web pages are parodies; thus, they are less likely to confuse consumers as to
the sponsorship, affiliation, or source”); Marriott Corp. v. Ramada Inc., 826 F. Supp. 726, 728
(S.D.N.Y.1993) (dismissing false advertising claim because ad was an obvious parody and one
that no “reasonable person would be misled—even absent the disclaimer—into believing”). And
here, there were two disclaimers removing any doubt that the Commercial was not to be taken
literally.
As discussed above, the Commercial plainly falls into the category of farcical
exaggerations that carry no risk of deceiving consumers. Martin is right when he says that Living
Essentials “deliberately wants the audience to hear loud and clear that the record for Hacky Sack
was accomplished because of 5-hour Energy,” Am. Compl. 2 (capitalization altered), but that’s
the point of exaggeration. Telling consumers that they might cross one more item off their to-do
list in the afternoon if they drink 5HE isn’t necessarily a compelling or memorable sales pitch;
consumers are much more likely to remember the claim that 5HE will enhance productivity if it
is delivered in a more colorful and entertaining message. The entire gambit of the commercial is
to make claims that are so patently impossible and exaggerated that they are comical and
therefore memorable. Claiming that by taking 5HE, one can disprove the theory of relativity,
master origami while beating “the record” for hacky sack, swim the English Channel and back,
and find Bigfoot all within the span of five hours, is obviously exaggerated hyperbole—better
described as farce than mere puffery—upon which no reasonable consumer would rely.
11
Stokely-Van Camp, Inc. v. Coca-Cola Co., 646 F. Supp. 2d 510 (S.D.N.Y. 2009),
provides an instructive example that also confirms the farcical nature of the Commercial. There,
the court addressed a false advertising claim arising from an advertisement for Powerade that
contained the slogan, “Upgrade your game.” Id at 529. The court held that the advertisement was
non-actionable puffery because it was “exaggerated and boastful, and no reasonable consumer,
having read the slogan, would be justified in believing that it would actually result in improved
athletic abilities, such as playing a better game of basketball.” Id. at 530. So too here, where the
boastful nature of the claim is the same but the message is delivered in a fashion that leaves no
room for doubt that the literal claims being made are farcical.
Given the farcical nature of the Commercial, Martin cannot plausibly allege consumer
confusion that has injured him, and he has not done so. He identifies no one who has been
confused by the Commercial at all, much less in a way that harms his commercial interests.
While Martin alleges that the Commercial has caused him “considerable angst,” that he has
suffered “severe injury to the commercial interest in [his] reputation,” and that he seeks “treble
damages from loss of endorsement,” Am. Compl. 4, Federal Rule of Civil Procedure 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at
678. Further, Martin also states that, although he has held the record since 1988, he has “never
endorsed anything.” Am. Compl. 2. Martin fails to claim any endorsements or financial
opportunities that he lost as a result of the Commercial, or to identify endorsement opportunities
that have been extended to other hacky sack elites. In conceding that in the 24 years of holding
“his record” between 1988 and 2012 that he had no endorsement deals, Martin has failed to
prove any alleged harm as required under the Lanham Act. See Web Printing Controls Co. v.
Oxy-Dry Corp., 906 F.2d 1202, 1204-05 (7th Cir. 1990) (“A plaintiff wishing to recover
12
damages for a violation of the Lanham Act must prove . . . that the plaintiff suffered actual
injury, i.e., a loss of sales, profits, or present value (goodwill).”).
If Martin’s record has any commercial value—a dubious proposition given his admission
that he has never endorsed anything—it would be among the Hacky Sack cognoscenti, but
Martin does not claim that it is they who have been misled. Instead, he speculates in his
Amended Complaint that “a young Hacky Sack player . . . could be induced by this commercial
to take 5-hour ENERGY . . .,” and “hope[s] this has not happened already.” Am. Compl. 4
(emphasis added). Martin’s concerns in this regard, though no doubt well-intentioned, fall short
of providing a basis for his claim. Martin has no standing to assert claims on behalf of others
who (according to Martin) may have been misled about the benefits of 5HE where Martin was
not. 7 Martin, moreover, has merely speculated about the possibility of consumer confusion; he
has not provided any facts showing consumer deception or confusion to support an allegation
that the statement is misleading in context. See Holland v. Lake Cty. Mun. Gov’t, 605 F. App’x
579, 580 (7th Cir. 2015) (plaintiff’s claim “amounts to nothing more than speculation, which is
insufficient to state a plausible claim for relief.”).
*
*
*
Because Martin’s IRPA claim is time-barred and because he has failed to plead sufficient
facts to support his claim under either the IRPA or the Lanham Act, Living Essentials’ motion to
dismiss is granted. And because repleading will not change the farcical nature of the
Commercial, the dismissal is with prejudice. The Commercial is an obvious joke that employs
7
Unlike the question of whether the Lanham Act affords a cause of action to injured
consumers (the “zone of interests” issue addressed in Lexmark, which is a non-jurisdictional
question), the issue of whether a plaintiff is seeking redress for an injury that he has not sustained
but others have is a question of Article III standing, which requires an injury-in-fact that is
traceable to the challenged conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
13
hyperbole and exaggeration for comedic effect. Its claims could not deceive anyone with a
modicum of common sense and wit. Mr. Martin (and the rest of us for that matter) would do well
to remember: defectum humoris non curat lex.
Dated: February 1, 2016
John J. Tharp, Jr.
United States District Judge
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