Bogie v. Rosenberg

• Decision Date: 20 February 2013
• Docket Number: No. 12–1923.,12–1923.
• Citation: 705 F.3d 603
• Parties: Ann BOGIE, Plaintiff–Appellant, v. Joan Alexandra Molinsky Sanger ROSENBERG a/k/a Joan Rivers, IFC Films LLC, Break Thru Films, Inc., Ricki Stern, Annie Sundberg, and Seth Keal, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

705 F.3d 603

Ann BOGIE, Plaintiff–Appellant,

v.Joan Alexandra Molinsky Sanger ROSENBERG a/k/a Joan Rivers, IFC Films LLC, Break Thru Films, Inc., Ricki Stern, Annie Sundberg, and Seth Keal, Defendants–Appellees.

No. 12–1923.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 2012.

Decided Jan. 17, 2013.

Rehearing Denied Feb. 20, 2013.

Andrew B. Greenlee (argued), Robert L. Sirianni, Jr., Attorneys, Brownstone, P.A., Winter Park, FL, for Plaintiff–Appellant.

David E. Jones (argued), Autumn N. Nero, Attorneys, Perkins Coie LLP, Madison, WI, for Defendants–Appellees.

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Plaintiff Ann Bogie appeals the district court's dismissal of her claims under Wisconsin law for invasion of privacy and misappropriation of her image. The claims are based on Bogie's attendance at a comedy performance by defendant Joan Rivers, sued here under her full name, Joan Alexandra Molinsky Sanger Rosenberg. Shortly after the show, Bogie approached Rivers in the backstage area of the Lake of the Torches Casino in Lac du Flambeau, Wisconsin. After autographing a copy of her book, Rivers had a brief conversation with Bogie. This sixteen-second exchange was filmed (we must assume without Bogie's consent) and included in a documentary film on Rivers that was sold nationwide.

Bogie has sued Rivers, her production company, and others for invasion of privacy and misappropriation of her image under Wis. Stat. § 995.50(2)(a)-(b). The case was filed in state court but was removed to federal court under diversity jurisdiction. The district court granted' defendant's motion to dismiss both claims with prejudice for failure to state a claim. Bogie appeals. Because we agree with the district court that no set of facts could exist consistent with the complaint that would allow these claims to survive, we affirm the judgment.

I. Factual and Procedural BackgroundA. Plaintiff's Allegations and the Film

Bogie attended a stand-up comedy show featuring Rivers. During the performance, Rivers told a joke about the deaf and blind Helen Keller, offending an audience member who had a deaf son. The audience member heckled Rivers, and the two had a brief but sharp exchange that was also captured on film and was part of the documentary. Immediately after the show, Rivers exited to a backstage area closed to the general public. Bogie gained entry to this backstage area and asked Rivers to sign a copy of her book. Bogie engaged Rivers in a short conversation during which Bogie expressed frustration with the heckler and sympathy for Rivers. Rivers responded with an expression of sympathy for the heckler. The conversation went as follows:

Bogie: Thank you. You are so ... I never laughed so hard in my life.

Rivers: Oh, you're a good laugher and that makes such a difference.

Bogie: Oh, I know. And that that rotten guy....

Rivers: Oh, I'm sorry for him.

Bogie: I was ready to get up and say ... tell him to leave.

Rivers: He has a, he has a deaf son.

Bogie: I know.

Rivers: That's tough.

Bogie: But he's gotta realize that this is comedy.

Rivers: Comedy.

Bogie: Right.

The film shows there were at least three other individuals present during this exchange: a uniformed security guard and two other men who appeared to work for or were at least associated with Rivers. They were all within a few feet of both Bogie and Rivers.

The interaction was filmed and included in the documentary entitled Joan Rivers: A Piece of Work. Bogie's conversation lasted sixteen seconds in the film's eighty-two minutes, or 0.3 percent of the entire film. The documentary was distributed and sold nationwide, including in Wisconsin. It enjoyed a positive reception and significant press coverage, touted for shedding light not only on Rivers's long career but also on the public's obsession with show business generally.

Plaintiff Bogie alleges that she was portrayed in the film as having approved of condescending and disparaging remarks by Rivers toward Wisconsin, its citizens, and the heckler. Bogie's complaint alleges that her privacy was invaded by the distribution of the film and that the film misappropriated her image for commercial purposes without her consent. Bogie seeks compensatory damages and an injunction against further distribution of the film.

B. The District Court Decision and the Standard of Review

The district court granted the defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. The video recording of the documentary was incorporated in Bogie's complaint, and the district court relied on its viewing of the video to decide the case. The district court ruled that no reasonable person in plaintiff's position could have considered the backstage area private, nor could the alleged intrusion have been considered highly offensive by a reasonable person. Bogie's invasion of privacy claim under section 995.50(2)(a) thus failed as a matter of law. The district court also found that the appropriation claim under section 995.50(2)(b) failed because it was subject to at least two separate common law exceptions: the newsworthiness or public interest exception, and the incidental use exception. The court concluded that amendment of the complaint would have been futile as to either claim, so its dismissal was with prejudice.

We review de novo a district court's dismissal of a claim pursuant to Rule 12(b)(6), construing the allegations in the complaint in the light most favorable to the non-moving party and giving that party the benefit of reasonable inferences from those allegations. Citadel Group Ltd. v. Washington Regional Medical Center, 692 F.3d 580, 591 (7th Cir.2012); Reger Development v. National City Bank, 592 F.3d 759, 763 (7th Cir.2010). “Under the federal rules' notice pleading standard, a complaint must contain only a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’ Fed.R.Civ.P. 8(a)(2).” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 555 (7th Cir.2012).

When a complaint fails to state a claim for relief, the plaintiff should ordinarily be given an opportunity, at least upon request, to amend the complaint to correct the problem if possible. See Fed.R.Civ.P. 15(a); Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir.2010) (reversing dismissal with prejudice); Foster v. DeLuca, 545 F.3d 582, 584–85 (7th Cir.2008) (reversing dismissal with prejudice where district court did not explain reason for denying leave to amend). Leave to amend need not be granted, however, if it is clear that any amendment would be futile. Garcia v. City of Chicago, 24 F.3d 966, 970 (7th Cir.1994).

C. District Court's Review of the Video on Motion to Dismiss

Bogie incorporated the video recording into her original complaint both by reference and by physically attaching the video recording to the amended complaint. The video shows in real time the content and context of the alleged wrongs. Bogie's complaint alleges that she was “back stage in a place that the public was prohibited from entering, and which a reasonable person, including the Plaintiff, would considerprivate.” The district court viewed the recording and weighed its content against the complaint's allegations. In considering a motion to dismiss under Rule 12(b)(6), district courts are free to consider “ ‘any facts set forth in the complaint that undermine the plaintiff's claim.’ ” Hamilton v. O'Leary, 976 F.2d 341, 343 (7th Cir.1992), quoting R.J.R. Services Inc. v. Aetna Casualty & Surety Co., 895 F.2d 279, 281 (7th Cir.1989). The freedom includes exhibits attached to the complaint, Fed.R.Civ.P. 10(c), or documents referenced in the pleading if they are central to the claim, Citadel Group Ltd., 692 F.3d at 591. “Taking all facts pleaded in the complaint as true and construing all inferences in the plaintiff's favor, we review the complaint and all exhibits attached to the complaint.” Forrest v. Universal Savings Bank, F.A., 507 F.3d 540, 542 (7th Cir.2007); see also Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690–91 (7th Cir.2012) (stating that it would make “eminently good sense” to extend incorporation-by-reference doctrine to video recording of television show that allegedly infringed copyright, but reserving decision on issue).

When an exhibit incontrovertibly contradicts the allegations in the complaint, the exhibit ordinarily controls, even when considering a motion to dismiss. Forrest v. Universal Savings Bank, F.A., 507 F.3d at 542 (“Where an exhibit and the complaint conflict, the exhibit typically controls.”). Cf. Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974) (“If the appended document, to be treated as part of the complaint for all purposes under Rule 10(c), Fed.R.Civ.P., reveals facts which foreclose recovery as a matter of law, dismissal is appropriate.”). As we said in Brownmark Films, it makes “eminently good sense” to apply these principles to video recordings attached to or referenced in a complaint, and we do so here. See 682 F.3d at 690–91. Because Wisconsin privacy law turns in part on the reasonable expectation an individual would have in the environment in question, we agree with the district court that the entire first claim can be resolved as a matter of law by observing the scene in the video.

When an exhibit contradicts the allegations in the complaint, ruling against the non-moving party on a motion to dismiss is consistent with our obligation to review all facts in the light most favorable to the non-moving party. We have explained that, “[s]uch an analysis is no different than that involved in contract disputes in which a plaintiff attaches a contract to the complaint and makes an allegation that the contract on its face clearly disputes.” Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 456 (7th Cir.1998). That is not to say...