Knight v. Climbing Magazine et al

Filing 75

ORDER DISMISSING CASE in its entirety. Defendant's 64 Motion for judgment on the pleadings is GRANTED. Plaintiff's fourth cause of action for appropriation of publicity is DISMISSED. Defendant's 73 Motion to dismiss is DENIED as moot. Signed by Judge Larry R. Hicks on 06/06/2013. (Copies have been distributed pursuant to the NEF - KR)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** ) ) ) ) ) ) ) ) ) ) ) 9 BRIAN KNIGHT, 10 Plaintiff, 11 v. 12 CLIMBING MAGAZINE; et al., 13 Defendants. 3:11-CV-0146-LRH-RAM ORDER 14 15 Before the court is defendant SKRAM Media, LLC’s (“SKRAM”) motion for judgment on 16 the pleadings. Doc. #64. Pro se plaintiff Brian Knight (“Knight”) did not file an opposition. 17 I. 18 Facts and Background In its January 2009 edition, dismissed defendant Climbing Magazine published an article 19 entitled “The Tao of Mr. Way,” written by non-party Cedar Wright. Plaintiff Knight alleges that he 20 is identified by name as the “Mr. Way” discussed in the article and that the article has subjected 21 him to ridicule from the climbing community. 22 On December 23, 2010, Knight filed a complaint against defendants for libel and intentional 23 infliction of emotional distress. Doc. #1, Exhibit A. On June 29, 2011, Knight filed an amended 24 complaint. Doc. #24. The court, on motion by defendant, dismissed the amended complaint but 25 granted Knight leave to file another amended complaint setting out specific causes of action. See 26 Doc. #54. 1 On June 25, 2012, Knight filed a second amended complaint. Doc. #55. In his second 2 amended complaint, Knight alleged six causes of action: (1) defamation; (2) false light; (3) public 3 disclosure of private facts; (4) appropriation of publicity; (5) intentional infliction of emotional 4 distress; and (6) negligent infliction of emotional distress. Id. In response, defendants filed a 5 renewed motion to dismiss the amended complaint. Doc. #56. Ultimately, the court granted in-part 6 and denied in-part defendants’ motion. Doc. #62. In particular, the court dismissed Knight’s claims 7 for defamation; false light; public disclosure of private facts; intentional infliction of emotional 8 distress; and negligent infliction of emotional distress. Id. However, the court did not dismiss 9 Knight’s claim for appropriation of publicity. Id. Thereafter, defendant SKRAM filed the present 10 motion for judgment on the pleadings on Knight’s remaining cause of action. Doc. #64. 11 II. 12 Legal Standard “After the pleadings are closed—but early enough not to delay trial—a party may move for 13 judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is proper when there 14 are no issues of material fact, and the moving party is entitled to judgment as a matter of law.” 15 Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational 16 Church, 887 F.2d 228, 230 (9th Cir. 1989). In ruling on a motion for judgment on the pleadings, 17 the court accepts as true all well-pleaded factual allegations by the nonmoving party and construes 18 the facts in the light most favorable to that party. Id. Thus, when brought by a defendant, the same 19 legal standard applies to a post-answer Rule 12(c) motion for judgment on the pleadings as applies 20 to a pre-answer Rule 12(b)(6) motion to dismiss for failure to state claim upon which relief can be 21 granted. See Johnson v. Rowley, 569 F.3d 40, 43-44 (2d Cir. 2009); see also Fed. R. Civ. P. 22 12(h)(2)(B) (providing the defense of failure to state a claim may be raised by a motion under Rule 23 12(c)); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (holding that a post-answer Rule 24 12(b)(6) motion should be treated as a Rule 12(c) motion). 25 To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the 26 Federal Rule of Civil Procedure 8(a)(2) notice pleading standard. See Mendiondo v. Centinela 2 1 Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). A complaint must contain “a short and plain 2 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The 3 Rule 8(a)(2) pleading standard does not require detailed factual allegations; however, a pleading 4 that offers only “labels and conclusions” or “a formulaic recitation of the elements of a cause of 5 action” will not suffice. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic 6 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 7 Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Id. at 1949 (internal 9 quotation marks omitted). A claim has facial plausibility when the pleaded factual content allows 10 the court to draw the reasonable inference, based on the court’s judicial experience and common 11 sense, that the defendant is liable for the misconduct alleged. See id. at 1949-50. “The plausibility 12 standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a 13 defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a 14 defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to 15 relief.” Id. at 1949 (internal quotation marks and citation omitted). 16 In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as 17 true. Id. (citation omitted). However, “bare assertions . . . amount[ing] to nothing more than a 18 formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth.” 19 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951) 20 (alteration in original) (internal quotation marks omitted). The court discounts these allegations 21 because they do “nothing more than state a legal conclusion – even if that conclusion is cast in the 22 form of a factual allegation.” Id. (citing Iqbal, 129 S. Ct. at 1951.) “In sum, for a complaint to 23 survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from 24 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id. (quoting 25 Iqbal, 129 S. Ct. at 1949). 26 /// 3 1 2 III. Discussion To state a claim for appropriation of a name or likeness, a plaintiff must allege: (1) the 3 defendant used the plaintiff’s name, likeness, or identity; (2) without the plaintiff’s consent; (3) for 4 the use of advertising or solicitation of commercial advantage; and (4) injury. See White v. Samsung 5 Electronics Am., 871 F.2d 1395, 1397; Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 6 (Cal. 1983). Further, it is sufficient to allege that a plaintiff’s name or likeness was used to motivate 7 a decision to purchase a particular product or service. Lee v. Penthouse Int’l, 1997 U.S. Dist. 8 LEXIS 23893, *7 (CD Cal. 1997). 9 However, under the affirmative defense of newsworthiness, “[p]ublication of matters in the 10 public interest, which rests on the right of the public to know, and the freedom of the press to tell 11 it” are not ordinarily actionable. Eastwood, 149 Cal. App. at 421. The scope of this affirmative 12 defense is extremely broad and “extends to almost all reporting of recent events even though it 13 involves the publication of a purely private person’s name or likeness.” Id. at 422; see also, Lee, 14 1997 U.S. Dist. LEXIS 23893, *12. 15 In its motion, defendant SKRAM argues that the underlying article is not actionable as it is 16 a newsworthy article based on Knight’s reputation within the climbing community and the 17 interesting nature of events described in the article. See Doc. #64. The court agrees. 18 In his second amended complaint, Knight alleges that he is a well known fixture with 19 standing in the climbing community. See e.g., Doc. #55, p.5, l:15 (noting his “standing in the 20 community of climbers”); p.7, l:14 (noting his “reputation as a climber”); p.12, l:3-4 (noting 21 Knight’s “reputation and good standing” in the climbing community). Thus, although Knight may 22 not enjoy the attention given to him in the article, there is a legitimate public interest within the 23 climbing community in Knight’s statements and actions. This public interest is recognized 24 especially in light of the fact that all of the described statements and actions occurred in public 25 places near Yosemite - a recognized climbing area - where he did not have any expectation of 26 privacy. 4 1 Further, the incidents described in the article are, themselves, newsworthy events. For 2 instance, the article describes an incident in which Knight attempted to claim a difficult route 3 without rappels and only with a single rope, an event which eventually necessitated a full 4 emergency rescue by Yosemite Search and Rescue (“YOSAR”). Similar stories involving rescues 5 have been held to be non-actionable. See Shulman v. Group W. Prods., Inc., 18 Cal. 4th 200, 228 6 (Cal. 1998) (holding that an automobile accident and ensuing rescue were non-actionable 7 newsworthy events). Therefore, the court finds that the underlying article is newsworthy. 8 Accordingly, the court shall grant SKRAM’s motion and dismiss Knight’s remaining claim for 9 appropriation of publicity. 10 11 IT IS THEREFORE ORDERED that defendant’s motion for judgment on the pleadings 12 (Doc. #64) is GRANTED. Plaintiff’s fourth cause of action for appropriation of publicity is 13 DISMISSED. 14 15 IT IS FURTHER ORDERED that this action, 3:11-cv-0146-LRH-WGC, is DISMISSED in its entirety. 16 17 IT IS FURTHER ORDERED defendant’s motion to dismiss (Doc. #73) is DENIED as moot. 18 IT IS SO ORDERED. 19 DATED 6th day of June, 2013. 20 __________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?