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Hinton v. Vonch, LLC

United States District Court, N.D. Illinois, Eastern Division

August 2, 2019

Jessica Hinton, et al., Plaintiffs,
v.
Vonch, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Manish S. Shah, United States District Judge.

         Ten professional models allege that defendants Vonch, LLC, and Polekatz Gentleman's Club, LLC, used their images in unauthorized Facebook advertisements, the most recent of which was posted more than a year before they filed suit. Defendants move to dismiss three counts of the complaint, arguing that two are untimely and that the third is premised on a faulty negligence theory. Plaintiffs say the statute of limitations is five years-not one-and, in any event, allege that the violations are continuous and ongoing and “hidden” because they were “‘pushed' down in time from immediate visibility.” They also say their negligence theory is properly premised on the general duty that all people owe each other (as well as other, more specific duties).

         I. Legal Standards

         A complaint must contain a short and plain statement that plausibly suggests a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Fed.R.Civ.P. 8(a)(2). In ruling on a motion to dismiss, although a court must accept all factual allegations as true and draw all reasonable inferences in the plaintiffs' favor, the court need not do the same for legal conclusions or “threadbare recitals” supported by only “conclusory statements.” Ashcroft, 556 U.S. at 678, 80-82. The plaintiff must provide “more than labels” or “a formulaic recitation of a cause of action's elements, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and the complaint must “contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Id. at 562.

         II. Facts

         Jessica Hinton and nine other professional models allege that defendants Vonch, LLC, and Polekatz Gentlemen's Club, LLC, displayed their likenesses in violation of the Lanham Act, see, e.g., [30] ¶¶ 168-184, 185-198, [1] Illinois's Right of Publicity Act, see, e.g., id. ¶¶ 199-221, and Illinois's common-law tort of false publicity. See, e.g., Id. ¶¶ 222-236.[2] None of them had ever worked for (nor had any affiliation with) Polekatz Gentlemen's Club, id. ¶ 55, but their images were used in advertisements posted on Polekatz's Facebook page. Id. ¶ 34. See also, e.g., [30-1] at 3. They say they did not know about these postings, [30] ¶ 56, the first of which appeared on October 29, 2015, id. ¶ 82, and the last of which appeared on October 11, 2017. [30] ¶ 159. According to their complaint, the advertisements were never removed and can still be viewed by anyone visiting the page in question-provided they scroll down far enough to find it. See, e.g., [30] ¶ 62.

         III. Analysis

         A complaint need not “anticipate and attempt to plead around defenses, ” Chicago Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613 (7th Cir. 2014), but can be dismissed as untimely if it alleges facts “sufficient to establish the complaint's tardiness.” Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 674-75 (7th Cir. 2009). Counts III and IV of the Amended Complaint (all ten of them) allege violations of Illinois's Right of Publicity Act, 765 Ill. Comp. Stat. 1075/1- 1075/60, see, e.g., [30] ¶¶ 199-221, and Illinois's common-law[3] prohibition against portraying a person in a “false light, ” respectively. See, e.g., [30] ¶¶ 222-236. Illinois's law provides the applicable statute of limitations. See Houben v. Telular Corp., 309 F.3d 1028, 1032 (7th Cir. 2002) (the Erie doctrine applies to state law claims brought through supplemental jurisdiction under 28 U.S.C. § 1367); Kalmich v. Bruno, 553 F.2d 549, 552 (7th Cir. 1977) (“State law barring an action because of a statute of limitations is sufficiently ‘substantive,' in the Erie sense, that a federal court in that state exercising diversity jurisdiction must respect it.”).

         Illinois's Right of Publicity Act is governed by a one-year statute of limitations. Blair v. Nevada Landing P'ship, 369 Ill.App.3d 318, 323 (2nd Dist. 2006) (“since the Right of Publicity Act completely supplanted the common-law tort of appropriation of likeness [citation omitted], we find applicable the one-year statute of limitations that pertained to the common-law tort”). Although the question remains an open one in this circuit, Martin v. Living Essentials, LLC, 653 Fed. App'x 482, 486 (7th Cir. 2016) (“we decline to predict if the state supreme court would endorse Blair, since, once again, the answer does not matter”), Blair's logic is persuasive. The common-law tort of appropriation-of-likeness was replaced by the cause of action provided for in Illinois's Right of Publicity Act. Blair, 369 Ill.App.3d at 322-23. The “rights and remedies provided for” in that Act “supplant” the “rights and remedies” that were “available under the common law, ” 765 Ill. Comp. Stat. 1075/60, but otherwise, the Act did “not affect an individual's common law rights as they existed before the effective date of this Act.” Id. The Right of Publicity Act does not contain a statute of limitations, see 765 Ill. Comp. Stat. 1075/1-1075/60, and the tort of appropriation-of-likeness used to be governed by a one-year statute of limitations, Benitez v. KFC Nat. Mgmt. Co., 305 Ill.App.3d 1027, 1034 (2nd Dist. 1999), so that same one-year limitations period applies. See also Wells v. Talk Radio Network-FM, Inc., No. 07 C 4314, 2008 WL 4888992, at *2 (N.D. Ill. Aug. 7, 2008); Maremont v. Susan Fredman Design Grp., Ltd., 772 F.Supp.2d 967, 971-72 (N.D. Ill. 2011); Martin v. Wendy's Int'l, Inc., 183 F.Supp.3d 925, 930 (N.D. Ill. 2016); Troya Int'l, Ltd. v. Bird-X, Inc., No. 15 C 9785, 2017 WL 6059804, at *13 (N.D. Ill.Dec. 7, 2017).

         According to the complaint, defendants posted the last image on October 11, 2017, [30] ¶ 159, more than one year before the complaint was filed on October 29, 2018. [1]. But because the images remained visible after the posting (until at least February, 2019, according to the complaint) the plaintiffs say the violations were “continuous and ongoing.” See, e.g., [30] ¶ 203. And, because the posts were “‘pushed' down in time from immediate visibility, ” they allege that the images were “hidden, inherently undiscoverable, or inherently unknowable.” See, e.g., id. ¶ 204.

         This was neither a continuing violation nor a hidden one. Under the single publication rule, an act of defamation (or invasion of privacy or “any other tort founded upon any single publication or exhibition or utterance, ” 740 Ill. Comp. Stat. 165/1) is complete “at the time of the publication” (so long as defendants do not take “any action beyond initially posting the stories to their web sites”). Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 614-15 (7th Cir. 2013). “[L]ater circulation of the original publication does not trigger fresh claims.” Id. at 615. Even marking a post as “updated” does “not start a new statute of limitations clock, ” so long as nothing else is changed. Kiebala v. Boris, 928 F.3d 680, 688 (7th Cir. 2019). See also Feltmeier v. Feltmeier, 207 Ill.2d 263, 278-79 (2003) (“[a] continuing violation or tort is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation”).

         The cases plaintiffs cite are inapposite. For instance, in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., the Illinois Supreme Court found that the statute of limitations reset each time defendants made “discrete decisions” and where their actions “constituted a separate violation” of the statute in question. 199 Ill.2d 325, 348 (2002). And in Kraszinski v. Rob Roy Country Club Vill. Ass'n, plaintiff alleged that defendant “regularly spray[ed] pesticides weekly in areas proximate to Plaintiff's dwelling.” No. 17-CV-2228, 2019 WL 1239690, at *6 (N.D. Ill. Mar. 18, 2019). Spraying pesticides reset the statute of limitations because it did not flow from a single act and instead demonstrated a “pattern of intentional harassment that continue[d] through the present.'” Id. (quoting Belleville Toyota, Inc., 199 Ill.2d at 348). The allegation here is that defendants simply “never removed” the advertisements, [30] ¶ 62, which is even less of a “discrete decision” than marking a post as “updated.” The failure to remove the post did not constitute a continuing violation. The Right of Publicity Act claim is untimely and dismissed.

         An action for false light is also governed by a one-year statute of limitations. Poulos v. Lutheran Soc. Servs. of Ill., Inc., 312 Ill.App.3d 731, 745 (1st Dist. 2000) (citing 735 Ill. Comp. Stat. 5/13-201). As with Illinois's Right of Publicity Act, the continuing violation rule does not apply where the publication was the result of a one- time decision to post something online. See Pippen, 734 F.3d at 615; Kiebala, 928 F.3d at 686; Feltmeier, 207 Ill.2d at 278 (2003). This claim is dismissed too.

         Defendants also move to dismiss those counts of the complaint that are premised on a negligence theory. With one exception, they cite decisions that were not applying or interpreting the law that governs here: Illinois's negligence law. See Houben, 309 F.3d at 1032; Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir. 2009) (applying Illinois law to an Illinois negligence theory). The one exception is a citation to the basic elements of a negligence theory. [36] at 11 (citing Cowper v. Nyberg, 2015 IL 117811, ¶ 13 (“a plaintiff must plead that the defendant ...


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