Best v. Malec

• Citation: 776 F.Supp.2d 752
• Decision Date: 03 March 2011
• Docket Number: Case No. 09 C 7749.
• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Parties: Eran BEST, Plaintiff,v.Stacey BERARD f/k/a Stacey Malec, Timothy Boogerd, City of Naperville, a Day With, Inc., Boutique TV, Inc. d/b/a the Greif Company, and A & E Television Networks, LLC, Defendants.

776 F.Supp.2d 752

Eran BEST, Plaintiff,

v.Stacey BERARD f/k/a Stacey Malec, Timothy Boogerd, City of Naperville, a Day With, Inc., Boutique TV, Inc. d/b/a the Greif Company, and A & E Television Networks, LLC, Defendants.

Case No. 09 C 7749.

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

March 3, 2011.

Adam M. Tamburelli, Thomas A. Zimmerman, Jr., Zimmerman Law Offices PC, Chicago, IL, for Plaintiff.Steven P. Mandell, Sharon Renae Albrecht, Steven L. Baron, Mandell, Menkes LLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

Eran Best has sued the City of Naperville, two Naperville police officers, and several television production companies on claims arising from her arrest and resulting involuntary appearance on the television show Female Forces. Best alleges that she was depicted on the show without her consent in a way that caused her severe emotional distress. She asserts both federal and state law claims arising out of her arrest and depiction on the television show.

Defendants have moved to dismiss Best's Illinois Right of Publicity Act (IRPA) claim on First Amendment grounds. Defendants have also moved for summary judgment on Best's IRPA, right of privacy, and intentional infliction of emotional distress claims on statute of limitations grounds. For the reasons stated below, the Court grants the motion to dismiss and defers ruling on the motion for summary judgment pending determination of whether counts 3 and 4 can survive the First Amendment analysis set forth in this decision.

Background

The Court takes the following facts from the allegations in Best's first amended complaint and the parties' submissions on the motions. Defendants A Day With, Inc. (ADW) and Boutique TV, Inc. d/b/a The Greif Company (Greif) produce a television show called Female Forces that airs on the Biography Channel. The Biography channel is owned by defendant A & E Television Networks, LLC (A & E). Female Forces is an unscripted “reality” television series that follows female police officers as they perform their duties and interact with members of the public. According to Best's complaint, the show's producers claim that they obtain a signed release from every member of the public who appears on the show.

The City of Naperville participates in the Female Forces program pursuant to a city resolution authorizing it to enter into a contract with ADW. The contract gives the Naperville Police Department the right to review a rough cut of each episode of the show and to insist on removal of material from the episode if it chooses. The department must make such a request within five days of receipt of the rough cut; failure to reply within the five-day period is deemed to constitute approval of the rough cut.

On February 24, 2008, Best was driving in Naperville when she was pulled over by Naperville police officer Timothy Boogerd because the license plate on her car had an expired sticker. Boogerd took Best's driver's license and registration and returned to his vehicle while Best waited in her car. From his squad car, Boogerd requested that Stacey Berard, a female Naperville officer who on that day was being accompanied by a Female Forces camera crew, join him at the scene.¹ The wait for Berard and the Female Forces crew caused a thirty minute delay in the processing of Best's traffic stop.

Once Berard and the camera crew arrived on the scene, Boogerd and Berard approached Best's car and directed her to get out. When Best asked what was going on, Berard identified herself as a police officer and stated that the television crew was filming a documentary about her. Boogerd and Berard performed a field sobriety test on Best. Best stated that she had consumed one beer three hours earlier, and she passed the field sobriety test. Boogerd and Berard then informed Best that she was driving on a suspended driver's license and placed her under arrest. They handcuffed Best and placed her in the back of Boogerd's squad car. Boogerd and Berard then proceeded to search Best's car, finding a pipe and a small amount of marijuana. After they completed the search, Boogerd transported Best to the Naperville police station while Berard waited at the scene for a tow truck to arrive to impound Best's car.

While Boogerd was transporting Best to the police station, he informed her that if she did not sign a written consent form, the footage of her arrest would not be shown on the Female Forces television show. Once Best arrived at the Naperville police station, a Female Forces producer approached her and urged her to sign a written consent form to allow the footage of her arrest to be used on the television show. Best repeatedly refused to sign a consent form.

Despite the fact that Best never signed a consent form, footage of the events surrounding her arrest was broadcast during an episode of Female Forces. The segment includes footage of the field sobriety test and Best's arrest, including the moment when she is placed in handcuffs. Best's face is visible, and her voice is audible throughout this footage.

The segment also includes scenes in which Best is not on camera. One scene shows Boogerd and Berard searching Best's car while bantering about her expensive taste. Berard says that Best likes Coach purses, bags, and shoes, and Boogerd comments that Best was driving a Jaguar. In another scene, Berard is shown in her squad car driving to the scene, speaking directly to the camera. At one point, as Berard is speaking to the camera, the camera focuses on a dashboard computer, on which information about Best—including her date of birth, height, weight, driver's license number, and brief descriptions of previous arrests and traffic stops—is displayed. After the scene showing Best's arrest, the camera again films Berard in her squad car, and she says, “Do I feel sorry for [Best]? No. Pretty little blond girl, 25 years old, driving a Jaguar-yeah, that's Naperville.”

The Female Forces episode featuring Best was first broadcast on the Biography Channel on December 7, 2008. It has been re-broadcast thirty times on that channel since December 14, 2008. Defendants made the episode available on the iTunes online store for digital download between December 8, 2008 and December 14, 2009. During several time intervals, the episode was also available for online viewing, or “streaming,” on the In Demand website.

Best filed suit against the defendants on December 14, 2009. She asserts six claims in her first amended complaint. In count 1, she alleges that defendants violated her federal constitutional rights to privacy and freedom from unreasonable search and seizure when they “staged, sensationalized, and/or enhanced” her arrest and broadcast it without her consent. In count 2, she alleges that ADW, Greif, and A & E (collectively, the “media defendants”) used her identity for commercial purposes without her consent, in violation of the Illinois Right of Publicity Act, 765 ILCS 1075/30. In count 3, she alleges that all the defendants invaded her privacy under Illinois common law by publicly disclosing private facts about her. In count 4, she asserts a claim of intentional infliction of emotional distress under Illinois law. In count 5, she alleges that the city of Naperville violated the Illinois Personal Information Protection Act when it allowed the computer screen showing her personal information to be broadcast on the Female Forces program. In count 6, Best alleges that the defendants violated the federal Driver's Privacy Protection Act, 18 U.S.C. § 2722(a), by disclosing her driver's license number in conjunction with her name when they broadcast the computer screen shot from the squad car.

Best's original complaint asserted the same federal and state law claims. On February 12, 2010, defendants moved to dismiss several of the state law claims on various grounds. On June 11, 2010, the Court denied the motion with regard to counts 2, 3, and 4. Best v. Malec, No. 09 C 7749, 2010 WL 2364412 (N.D.Ill. June 11, 2010). The Court dismissed count 5 with prejudice. Id. at *7.

Defendants moved to reconsider the Court's denial of the motion with regard to counts 2, 3, and 4, or, alternatively, to certify the dismissal of those claims for interlocutory appeal. Following a hearing on July 14, 2010, the Court denied the motion with regard to counts 2 and 4. On count 2, the motion to reconsider asserted that the Court's reading of IRPA ran afoul of the First Amendment. The Court concluded that defendants had not asserted this argument in their motion to dismiss and therefore could not raise the issue on a motion to reconsider. On count 4, the Court concluded that defendants' disagreement with the Court's ruling did not provide an appropriate basis for reconsideration. After requesting and reviewing additional submissions from the parties, the Court denied the motion to reconsider as to count 3 and defendants' request to certify dismissal of the claims for interlocutory appeal. Best v. Malec, No. 09 C 7749, 2010 WL 3721475 (N.D.Ill. Sept. 14, 2010).

Best then filed a first amended complaint naming Boutique TV, Inc. as a defendant and terminating defendant Good Luck Nat, Inc. Defendants have moved to dismiss count 2 of the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and have now squarely presented the First Amendment argument that the Court concluded they had not made in their motion to dismiss the original complaint. Defendants have also moved for summary judgment on counts 2, 3, and 4 on statute of limitations grounds.

Discussion

When considering a motion to dismiss a complaint under Rule 12(b)(6), the Court accepts the facts stated in the complaint as true and draws reasonable inferences in favor of the plaintiff. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009). To survive the motion, the complaint must include enough...