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Berry v. Ford Modeling Agency

May 13, 2010

AUREEN BERRY, PLAINTIFF,
v.
FORD MODELING AGENCY, DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant's motion to dismiss [7], which Defendant brought pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Defendant's motion is denied.

I. Background

Plaintiff's complaint alleges that a company that Defendant acquired (Compl. ¶ 2) entered into a contract to take photographs of Plaintiff (Compl. ¶¶ 16, 31). According to Plaintiff, Defendant did not obtain consent to use Plaintiff's photographs (Compl. ¶¶ 8, 22), but nonetheless did use the photographs commercially (Compl. ¶¶ 9-10). By doing so, Plaintiff contends that Defendant violated the former's right of publicity under the Illinois Right of Publicity Act. Compl. ¶¶ 22-23; 765 ILCS 1075/1 et seq.

It is true that Plaintiff's allegations appear among numerous citations to Illinois Code provisions and duplicative, hard-to-follow paragraphs. However, rather than filing a motion for a more definite statement, which may have been the better course in this case, Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. Legal Standard for Rule 12(b)(6) Motions to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case.See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1965, 1973 n.14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 127 S.Ct. at 1969. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

Defendant advances two principal arguments in support of its motion to dismiss. Neither one is well taken at this time. Defendant's first principal argument is that Plaintiff's "vague" pleading failed to state a claim upon which relief can be granted. However, the Court concludes that Plaintiff's allegations are hardly a mystery and indeed require no "hypothecat[ing]" (Def. Mot. at 2) by the Court. Defendant's second principal argument is that several affirmative defenses sink Plaintiff's case. Specifically, the affirmative defenses are that the doctrine of collateral estoppel applies to the action and bars Plaintiff's claims, Defendant is not a "proper party" to the action, and Plaintiff's action is time-barred. Defendant's arguments on this score are premature, however, because Plaintiff has not established the affirmative defenses in her complaint and thereby pled herself out of court.

A. Plaintiff States a Plausible Claim for Relief

Defendant's first argument is that "even with a pro se plaintiff, the situation is clear-cut: Plaintiff alleges no facts that support any cause of action against Ford * * * The Complaint contains only the following information: (1) numerous citations to the Illinois Right of Publicity Act, (2) the address of Ford Model's Chicago office, (3) the former addresses of [companies that Defendant acquired], and (4) vague, and in most cases indecipherable, statements about written contracts." The Court respectfully disagrees. Plaintiff's complaint at once defies and belies Defendant's taxonomy: the complaint alleges that a company that Defendant acquired entered into a contract to take photographs of Plaintiff (Compl. ¶¶ 2, 16, 31), that Defendant did not obtain consent to use Plaintiff's photographs (Compl. ¶¶ 8, 22), and that Defendant nonetheless used the photographs commercially (Compl. ¶¶ 9-10). To the extent Defendant could make neither heads nor tails of these allegations, it would have been the better course to move for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). District judges do not, and cannot, ordinarily dismiss a complaint with prejudice merely because the complaint is confusing. Fidelity Nat'l Title Ins. Co. of New York v. Intercounty Nat'l Title Co., 412 F.3d 745, 749 (7th Cir. 2005). "The fact that Rule 12(e) of the civil rules authorizes the granting of a defendant's motion for a more definite statement indicates that a confusing pleading is not ordinarily a fatal defect. But it can become one if despite repeated attempts the plaintiff is unable to draft an intelligible complaint." Id. (emphasis added).

Moreover, as the Supreme Court made clear in Erickson v. Pardus, 551 U.S. 89 (2007), the liberal pleading standards that apply to pro se litigants have survived the Supreme Court's recent "plausibility" cases that interpret Rule 8 of the Federal Rules of Civil Procedure. Id. at 94-95; see also Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) ("[W]e construe pro se complaints liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers."). And in general, the Seventh Circuit's case law reveals that the Supreme Court's recent decisions in this realm represent a refinement rather than a revolution. See, e.g., Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) ("a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable * * * [And the 'plausibility' requirement] simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence supporting the plaintiff's allegations") (quotation marks omitted). Thus, the citation in Defendant's brief to Small v. Chao, 389 F.3d 894, 898 (7th Cir. 2005), is inapposite. In Small, the Seventh Circuit upheld the trial Court's dismissal of an action after the court of appeals considered (exhaustively) whether the facts alleged in his complaint stated a cause of action under myriad legal theories. Before affirming the trial court's decision, the court cast a wide net and only then concluded that each of several possible theories was "doomed." Id. In contrast, although the pertinent facts in Plaintiff's complaint are interspersed with inapt legal jargon and citations, distinguishing the wheat from the chaff in Plaintiff's complaint is not an impossible task.

And despite Defendant's stick-to-itiveness in its reply brief, any doubt about the matter should have been put to rest by Plaintiff's response brief (and exhibits thereto), which removes any ambiguity about Plaintiff's theory of her case and set out additional matter adequately to put Defendant on notice of the claims against Plaintiff and to raise the possibility of relief above the speculative level. See also Gutierrez v. Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997) ("As our decisions make clear, facts alleged in a brief in opposition to a motion to dismiss * * * as well as factual allegations contained in other court filings of a pro se plaintiff may be considered when evaluating the sufficiency of a complaint so long as they are consistent with the ...


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