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Jill E. Maremont v. Susan Fredman Design Group

December 7, 2011

JILL E. MAREMONT, PLAINTIFF,
v.
SUSAN FREDMAN DESIGN GROUP, LTD. AND SUSAN FREDMAN, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

In her Second Amended Complaint, Plaintiff Jill E. Maremont alleges violations of the Lanham Act, 15 U.S.C. § 1125(a), and Stored Communications Act, 18 U.S.C. § 2701, et seq., against Defendants Susan Fredman Design Group, Ltd. ("SFDG") and Susan Fredman (Counts I and II). See 28 U.S.C. § 1331. Pursuant to the Court's supplemental jurisdiction, Maremont also alleges a claim under the Illinois Right of Publicity Act, 765 ILCS 1075, et seq. (Count III) and a common law right to privacy claim (Count IV). See 28 U.S.C. § 1367(a).

Before the Court is Defendants' motion for summary judgment and Plaintiff's motion for partial summary judgment as to Counts I, II, and III of the Second Amended Complaint -- both pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the Court grants in part and denies in part Defendants' motion for summary judgment and denies Plaintiff's motion for partial summary judgment. The Court dismisses Plaintiff's Illinois Right of Publicity Act claim as alleged in Count III and common law right to privacy claim as alleged in Count IV with prejudice.

BACKGROUND

I. Northern District of Illinois Local Rule 56.1

Local Rule 56.1 assists the Court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). "The Rule is designed, in part, to aid the district court, 'which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information,' in determining whether a trial is necessary." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the moving party contends there is no genuine issue." Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). "The opposing party is required to file 'a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Id. (citing N.D. Ill. R. 56.1(b)(3)(B)). Also, Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a separate statement of additional facts that requires the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).

The purpose of Local Rule 56.1 statements is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) ("statement of material facts did [] not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture"). Therefore, the Court will not address the parties' legal and factual arguments made in their Rule 56.1 statements and responses. See System Dev. Integration, LLC v. Computer Sciences Corp., 739 F.Supp.2d 1063, 1068 (N.D. Ill. 2010). Moreover, the requirements for responses under Local Rule 56.1 are "not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted." Bordelon, 233 F.3d at 528.

The Court may also disregard statements and responses that do not properly cite to the record. See Cady, 467 F.3d at 1060; Cichon v. Exelon Generation Co., LLC, 401 F.3d 803, 809-10 (7th Cir. 2005). Because Defendants failed to respond to Maremont's Rule 56.1 Statement of Additional Facts, all of Maremont's additional facts are deemed admitted. See N.D. Ill. Local Rule 56.1(b)(3)(C); Parra v. Neal, 614 F.3d 635, 636 (7th Cir. 2010).

II. Relevant Facts

Defendant SFDG is an interior design firm headquartered in Chicago and incorporated in the State of Illinois. (R. 39, Defs.' Rule 56.1 Stmt. Facts ¶ 1.) Defendant Fredman owns SFDG. (Id. ¶ 2.) During the relevant time period, SFDG employed Maremont as the Director of Marketing, Public Relations, and E-commerce. (Id. ¶ 3.) Maremont's annual compensation included a bonus contingent upon SFDG's gross sales exceeding certain threshold levels. (Id. ¶ 14.) Accordingly, Maremont's social media efforts to promote SFDG's sales qualified her for bonuses. (Id. ¶ 15.) During the course of Maremont's employment at SFDG, she became well known in the Chicago design community and had developed a personal Twitter following of approximately 1,250 people. (R. 44, Pl.'s Rule 56.1 Stmt. Add'l Facts ¶ 34.)

As part of a social media marketing campaign for SFDG, Maremont created the SFDG blog titled "Designer Diaries: Tales from the Interior" that was hosted on SFDG's website. (Id. ¶ 40; Defs.' Stmt. Facts ¶ 5.) Although it is undisputed that Maremont opened a Twitter account using an SFDG computer at SFDG's offices, it is also undisputed that Maremont's personal Twitter and Facebook accounts were not for the benefit of SFDG. (Defs.' Stmt. Facts ¶ 6; Pl.'s Stmt. Facts ¶ 35.) Maremont, however, also opened a Facebook account for SFDG that was not her personal Facebook account. (Defs.' Stmt. Facts ¶ 9.) Maremont used Facebook and Twitter posts to promote SFDG by linking them to SFDG's blog and website. (Defs.' Stmt. Facts ¶ 10.) Maremont entered and stored all account access information, including passwords for her Twitter and Facebook accounts, on the SFDG server by utilizing a SFDG-owned computer, although the folder in which she stored this information was locked and Maremont never gave authority to anyone to access her personal Twitter and Facebook accounts. (Id. ¶ 11; Pl.'s Stmt. Facts ¶ 42.)

On September 15, 2009, an automobile struck Maremont and a SFDG co-worker while they were on a work-related errand. (Defs.' Stmt. Facts ¶ 16.) The accident seriously injured Maremont and her co-worker. (Id.) Specifically, Maremont suffered serious brain trauma and still suffers from post-concussion syndrome and post-traumatic stress disorder. (Id. ¶ 25.) While she was hospitalized for her injuries between September 15 and 24, 2009, Maremont found out that SFDG had posted entries on her Facebook page promoting SFDG. (Id. ¶ 17.) Maremont admits, however, that she did not see these Facebook entries and has no copies of them. (Id. ¶ 18.) Also when she was hospitalized, Maremont discovered that SFDG posted Tweets on her Twitter account promoting SFDG. (Id. ¶ 19; Pl.'s Stmt. Facts ¶¶ 51, 63.) Maremont has copies of seventeen Tweets posted during her absence from SFDG. (Defs.' Stmt. Facts ¶ 20.) The first of these Tweets was posted on September 21, 2009 and was linked to an SFDG blog written by Fredman explaining Maremont's accident. (Id. ¶ 21.) This blog entry also announced that during Maremont's absence, a guest blogger, Olivia Fink-Larsen, would assume Maremont's role at SFDG. (Id.) The other Tweets promoted SFDG and in some cases linked readers to the SFDG blog or website. (Id.)

Meanwhile, Maremont asked Fredman and her employees to refrain from posting updates to her Facebook page and Twitter account while she was in the hospital and not working at SFDG, yet SFDG employees failed to refrain from doing so. (Pl.'s Stmt. Facts ¶¶ 53, 54.) On December 11, 2009, Maremont and her husband changed the password on her Twitter account. (Id. ¶¶ 59, 60; Defs.' Stmt. Facts ¶ 23.) Maremont maintains that she suffered severe emotional distress when she realized that Defendants had sent out Tweets and Facebook posts from her personal Twitter and Facebook accounts promoting SFDG's business. (Pl.'s Stmt. Facts ¶ 65.)

On May 17, 2010, Maremont returned to work at SFDG on a part-time basis. (Defs.' Stmt. Facts ¶ 27.) The next day, May 18, 2010, Maremont wrote Facebook and Twitter posts that she linked to a May 17, 2010 entry on SFDG's blog in which she announced "Your Editor is Back!" (Id. ¶ 28.) In these posts, Maremont thanked her temporary replacements, Olivia Fink-Larson and Michelle Doorman, "for their amazing posts on Designer Diaries in my absence and Michelle's giant contribution to the Chicago Interior Designers at the Susan Fredman Design Group as the acting Marketing Director." (Id.) On June 1, 2010, Maremont's doctor recommended that she stop work ...


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