Knight v. Climbing Magazine et al

Filing 62

ORDERED that Ds' # 56 Motion to dismiss is GRANTED in-part and DENIED in-part. ( see pdf order for specifics ) FURTHER ORD P's # 60 Motion to strike is DENIED. Signed by Judge Larry R. Hicks on 12/18/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRIAN KNIGHT,

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Plaintiff,

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v.

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CLIMBING MAGAZINE; et al.,

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Defendants.

3:11-CV-0146-LRH-RAM
ORDER

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Before the court is defendants SKRAM Media, LLC (“SKRAM”) and Climbing Magazine’s

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(“CM”) renewed motion to dismiss. Doc. #56. Pro se plaintiff Brian Knight (“Knight”) filed an

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opposition (Doc. #58) to which defendants replied (Doc. #59).

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Also before the court is Knight’s motion to strike defendants’ reply. Doc. #60.
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Facts and Background
In its January 2009 edition, defendant CM published an article entitled “The Tao of Mr.

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Way,” written by non-party Cedar Wright. Plaintiff Knight alleges that he is identified by name as

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the “Mr. Way” discussed in the article and that the article has subjected him to ridicule from the

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climbing community.

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On December 23, 2010, Knight filed a complaint against defendants for libel and intentional

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infliction of emotional distress. Doc. #1, Exhibit A. On June 29, 2011, Knight filed an amended

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complaint. Doc. #24. The court, on motion by defendant, dismissed the amended complaint but

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granted Knight leave to file another amended complaint setting out specific causes of action. See

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Doc. #54.

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On June 25, 2012, Knight filed a second amended complaint. Doc. #55. In his second

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amended complaint, Knight alleges six causes of action: (1) defamation; (2) false light; (3) public

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disclosure of private facts; (4) appropriation of publicity; (5) intentional infliction of emotional

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distress; and (6) negligent infliction of emotional distress. Id. Thereafter, defendants filed the

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present renewed motion to dismiss. Doc. #56.

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II.

Legal Standard

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Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

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to state a claim upon which relief can be granted. To survive a motion to dismiss for failure to state

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a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading

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standard. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That

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is, a complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require

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detailed factual allegations; however, a pleading that offers “‘labels and conclusions’ or ‘a

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formulaic recitation of the elements of a cause of action’” will not suffice. Ashcroft v. Iqbal, 129 S.

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Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 1949 (quoting

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Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows

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the court to draw the reasonable inference, based on the court’s judicial experience and common

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sense, that the defendant is liable for the misconduct alleged. See id. at 1949-50. “The plausibility

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standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a

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defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a

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defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to

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relief.” Id. at 1949 (internal quotation marks and citation omitted).
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In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as

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true. Id. However, “bare assertions . . . amount[ing] to nothing more than a formulaic recitation of

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the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret

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Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951) (brackets in original)

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(internal quotation marks omitted). The court discounts these allegations because “they do nothing

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more than state a legal conclusion—even if that conclusion is cast in the form of a factual

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allegation.” Id. (citing Iqbal, 129 S. Ct. at 1951.) “In sum, for a complaint to survive a motion to

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dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be

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plausibly suggestive of a claim entitling the plaintiff to relief.” Id.

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III.

Discussion

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A. Defendant Climbing Magazine

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In their motion, defendants argue that defendant CM is not a separate legal entity capable of

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being sued. The court agrees. Defendant CM is merely a magazine publication owned by defendant

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SKRAM. As such, it is not a separate legal entity capable of being sued in its own capacity. Rather

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it is an intellectual property asset. Accordingly, the court shall dismiss CM as a defendant.

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B. Defamation and False Light

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In Nevada, when a cause of action arises in another state, that state’s statute of limitations

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provision applies. See NRS 11.020. Knight’s claims for defamation and false light occurred in

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California, where he resides. See McGuire v. Brightman, 79 Cal. App. 3d 776, 785 (1978) (holding

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that “the essence of defamation is injury to the reputation of the plaintiff in his home area where he

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is known”). California has a one-year statute of limitation for defamation and false light claims. See

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California Code of Civil Procedure 340(c).

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Here, Knight’s claims for defamation and false light claims are barred by the applicable

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statute of limitations. Knight did not file a complaint asserting defamation or false light claims until

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December 23, 2010 (Doc. #1, Exhibit 1), almost two years after the publication of the article in

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January 2009. Accordingly, Knight’s defamation and false light claims shall be dismissed.
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C. Public Disclosure of Private Facts

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To allege a claim for public disclosure of private facts a plaintiff must allege: (1) a public

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disclosure; (2) of a private fact; (3) which would be offensive or objectionable to a reasonable

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person; and (4) which is not of a legitimate public concern. See Shulman v. Group W. Prods., Inc.,

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955 P.2d 469, 478 (Cal. 1998).

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The court has reviewed Knight’s second amended complaint and finds that he does not

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allege the disclosure or dissemination of a private fact. In his second amended complaint, Knight

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alleges that non-party Wright wrote about conversations he had with Knight and actions he

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witnessed in various restaurants. These statements and actions were made in public places where

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Knight did not have an expectation of privacy. Therefore, the court finds that Knight has not

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alleged any private facts disclosed by the defendants. Accordingly, the court shall dismiss this

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claim.

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D. Appropriation of Publicity

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To state a claim for appropriation of a name or likeness, a plaintiff must allege: (1) the

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defendant used the plaintiff’s name, likeness, or identity; (2) without the plaintiff’s consent; (3) for

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the use of advertising or solicitation of commercial advantage; and (4) injury. See White v. Samsung

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Electronics Am., 871 F.2d 1395, 1397; Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417

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(Cal. 1983). Further, it is sufficient to allege that a plaintiff’s name or likeness was used to motivate

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a decision to purchase a particular product or service. Lee v. Penthouse Int’l, 1997 U.S. Dist.

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LEXIS 23893, *7 (CD Cal. 1997).

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In his second amended complaint, Knight alleges that defendant Skram used his name and

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likeness in the article without his permission. Knight further alleges that, because he is a well

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known fixture in the climbing community, the appearance of this name in the magazine article

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increased the magazine’s circulation and popularity which ultimately led to increased advertising

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revenue. The court finds that these allegations are sufficient to allege a claim for appropriation of

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publicity.1

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E. Infliction of Emotional Distress

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To establish a claim for either intentional or negligent infliction of emotional distress, a

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plaintiff must show both (1) extreme or outrageous conduct by defendant; and (2) severe emotional

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distress. Dillard Dept. Stores, Inc. v. Beckwith, 989 P.2d 882, 886 (Nev. 1999). Extreme and

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outrageous conduct is that which is “outside all possible bounds of decency” and is intolerable in

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civil life. Maduike v. Agency Rent-A-Car, 953 P.2d 24, 25 (Nev. 1998).

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In his second amended complaint, Knight alleges that the published article presented him in

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a bad light and that he has received ridicule from the climbing community as a result. The court

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finds that these allegations are insufficient to state a claim for intentional and negligent infliction of

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emotional distress. First, there are no allegations that defendants acted in a manner that was outside

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all possible bounds of decency in publishing an article concerning Knight’s activities carried out in

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a public space including a public restaurant, nor does the court find that the publishing of such an

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article is extreme or outrageous conduct that cannot be condoned in civil life. Second, Knight has

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failed to allege any actual emotional distress or physical harm that resulted from the article.

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Therefore, the court finds that Knight has failed to allege a claim for either intentional or negligent

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emotional distress. Accordingly, the court shall dismiss these claims.

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The court notes that Knight’s claim for appropriation of publicity may be subject to s ev eral
affirmative defenses including the defense of new sw orthiness as Knight alleges to be a well know n personality
in the climbing community. How ever, as defendant Skram has not raised any affirmative defenses at this point
in the litigation, the court makes no findings or conclusions regardin g an y defense’s merits or applicability to
this claim.

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IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Doc. #56) is

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GRANTED in-part and DENIED in-part. Plaintiff’s first cause of action for defamation; second

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cause of action for false light; third cause of action for public disclosure of private facts; fifth cause

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of action for intentional infliction of emotional distress; and sixth cause of action for negligent

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infliction of emotional distress are DISMISSED from plaintiff’s second amended complaint

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(Doc. #55). Plaintiff’s fourth cause of action for appropriation of publicity is NOT DISMISSED.

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IT IS FURTHER ORDERED that plaintiff’s motion to strike (Doc. #60) is DENIED.

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IT IS SO ORDERED.

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DATED 18th day of December, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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