United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. Shah, United States District Judge.
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).
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.
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.,  ¶¶ 168-184, 185-198,
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. 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,  ¶
56, the first of which appeared on October 29, 2015,
id. ¶ 82, and the last of which appeared on
October 11, 2017.  ¶ 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.,  ¶ 62.
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., 
¶¶ 199-221, and Illinois's
common-law prohibition against portraying a person in
a “false light, ” respectively. See,
e.g.,  ¶¶ 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
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).
to the complaint, defendants posted the last image on October
11, 2017,  ¶ 159, more than one year before the
complaint was filed on October 29, 2018. . 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.,  ¶ 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. ¶
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”).
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,  ¶
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.
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
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.  at 11 (citing Cowper v. Nyberg, 2015 IL
117811, ¶ 13 (“a plaintiff must plead that the