Deveraux v. Sison
| Decision Date | 02 March 2021 |
| Docket Number | No. CV-18-04882-PHX-DJH,CV-18-04882-PHX-DJH |
| Parties | Sydni Deveraux, Plaintiff, v. Lauren Sison, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
This matter is before the Court on its own review. At the Final Pretrial Conference, the Court requested briefing on two issues: (1) how Defendants' alleged statements constituted a commercial advertisement or promotion under the Lanham Act, and (2) whether Plaintiff is a public figure for purposes of her defamation claim (Doc. 61). The parties discussed these issues and were ordered to file briefing on the matter (Doc. 64). Plaintiff Sydni Deveraux ("Deveraux") filed a brief on these issues (Doc. 68), and Defendant Christina Duryea ("Duryea") filed a brief in opposition (Doc. 69).
As alleged in the Second Amended Complaint ("SAC"), the parties are peers and competitors in the burlesque performance industry. (Doc. 23 at ¶¶ 2, 23). Deveraux alleges that she herself is a "highly successful, award-winning and internationally acclaimed burlesque performer . . . ." (Id. at ¶ 2). "Throughout Ms. Deveraux's nearly 15 year career in burlesque, she has been featured in hundreds of shows taking her to stages around the world." (Id. at ¶ 15).
All the SAC's claims stem from Defendants' allegedly false accusations of sexual assault. (Id. at ¶¶ 58-96). The SAC alleges that Duryea texted and called the producer of a burlesque performance troupe, Spellbound, and told her Deveraux had sexually assaulted someone despite knowing the statement to be false. (Id. at ¶¶ 51-52). Spellbound's producers later called Deveraux and told her she could no longer work with the troupe and cancelled an upcoming show in which Deveraux would perform. (Id. at ¶¶ 56-57).
At issue here are the First and Fourth Claims. The First Claim alleges that Defendants published false and misleading statements about her in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). (Id. at ¶¶ 58-61). The Fourth Claim is for defamation per se. (Id. at ¶¶ 77-88). During the Final Pretrial Conference, the Court noted it was considering dismissing the SAC's Lanham Act claim for failing to state a plausible claim. The Court also noted that the SAC seemed to show Plaintiff was a public figure for purposes of the defamation claim. The Court requested briefing on both issues, and it will now address each in turn.
The Court will evaluate whether the SAC states a plausible Lanham Act claim under federal pleading standards. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (). Dismissal of a claim is proper when there is either (1) a lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal claim. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011), cert. denied, Blasquez v. Salazar, 565 U.S. 1261 (2012). The Court will accept the SAC's allegations as true and draw on its own experience and common sense. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Under that Lanham Act, a "person who . . . uses in commerce any . . . false or misleading description of fact, or false or misleading representation of fact . . . in commercial advertising . . . misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or islikely to be damaged by such act." 15 U.S.C. § 1125(a)(1) (emphasis added).
The Court requested the parties discuss whether Duryea's statement to Spellbound is a "commercial advertisement." In the Ninth Circuit, to constitute commercial advertisement, a statement must be:
(1) commercial speech; (2) by the defendant who is in commercial competition with the plaintiff; (3) for the purpose of influencing consumers to buy defendant's goods or services. While the representations need not be made in a "classic advertising campaign," but may consist instead of more informal types of "promotion," the representations (4) must be disseminated sufficiently to the relevant purchasing public to constitute "advertising" or "promotion" within that industry.
Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1054 (9th Cir. 2008) (quoting Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999)).
The parties dispute this test's fourth prong, whether the statement was sufficiently disseminated. "To be 'sufficiently disseminated,' the actions must be 'part of an organized campaign to penetrate the relevant market,' which typically involves 'widespread dissemination within the relevant industry.'" Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1121 (9th Cir. 2021) (quoting Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 57 (2d Cir. 2002)). The size of the industry in question typically plays a role in determining what constitutes widespread. For example, the Ninth Circuit has noted that "[w]here the potential purchasers in the market are relatively limited in number, even a single promotional presentation to an individual purchaser may be enough to trigger the protections of the Act." Coastal Abstract Serv., 173 F.3d at 735 (quoting Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1386 (5th Cir. 1996)). However, when the market is not limited, courts have found that "isolated disparaging statements" do not suffice to invoke the Lanham Act. eMove, 2012 WL 1379063, at *5 (quoting Fashion Boutique, 314 F.3d at 57).
Deveraux argues that Duryea's informal statements disseminated in the small, "siloed" market for burlesque performers in Phoenix, Arizona, are sufficient to constitute commercial advertising. (Doc. 68 at 3-4). Deveraux does not cite to any authorityexplaining why the Court should focus only on this Phoenix market when the SAC claims Deveraux's services as a burlesque performer are in demand internationally. (See Doc. 23 at ¶¶ 2, 15). By her own words, there is a global market for her services and one specifically alleged instance of misinformation aimed at one market participant. Therefore, the Court finds Deveraux's allegation of an "isolated disparaging statement[]" in a global market does not constitute commercial advertisement sufficient to bring a plausible Lanham Act claim. See Fashion Boutique, 314 F.3d at 57 (). The Court will dismiss the SAC's First Claim under the Lanham Act claim for failure to state a claim. See Iqbal, 556 U.S. at 697.
The parties dispute whether Deveraux is a public figure for purposes of her defamation claim. This issue is important as it relates to constitutional speech protections. See New York Times Co. v. Sullivan, 376 U.S. 254, 282-83 (1964) (). Generally, public figures bringing defamation claims must prove the defamatory statement was with actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323, 334-37 (1974). Without supporting authority, Deveraux contends that her defamation claim is governed by New York law, under which the jury must decide whether she is a public figure. (Doc. 68 at 5). She concedes that under Arizona law, this issue may be decided as a matter of law. (Id. at 6). Therefore, before considering whether Deveraux is a public figure, the Court must first address whether New York or Arizona law applies to Deveraux's defamation claim.
Deveraux's federal claims invoke this Court's original jurisdiction, which places the defamation claim under its supplemental jurisdiction. See 28 U.S.C. § 1367(a). Federal courts exercising supplemental jurisdiction over state claims apply the choice-of-law rules of the forum state. Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1164 (9thCir. 1996). Arizona, the forum state, follows the Restatement (Second) of Conflict of Laws. Pounders v. Enserch E & C, Inc., 306 P.3d 9, 11 (Ariz. 2013).
Under the Restatement, the law of the state where publication occurs generally governs. Restatement (Second) of Conflict of Laws § 149 (Am. L. Inst. 1971).1 The Complaint alleges that Duryea called and texted the Arizona troupe's producer "in Arizona" and made the defamatory statements. (Doc. 23 at ¶¶ 51-52). Because publication was made in Arizona, Arizona defamation law applies, not New York law. See Restatement (Second) of Conflict of Laws § 149 cmt. d (Am. L. Inst. 1971) ( ).
In Arizona, whether an individual is a public figure is a question of law. Cadigan v. Harrington in & for County of Pima, 2019 WL 3540271, at *1 (Ariz. Ct. App. Aug. 2, 2019). The same is true in the Restatement. Restatement (Second) of Torts § 580A cmt. d (Am. L. Inst. 1977) ("The question of whether a plaintiff is a public official or a public figure . . . is one of law, not of fact, though the facts on which the determination is to be made may be in dispute and therefore subject to the determination of the fact finder."); see also Burns v. Davis, 993 P.2d 1119, 1126 (Ariz. Ct. App. 1999) (); Hansen v. Stoll, 636 P.2d 1236, 1239 (Ariz. Ct. App. 1981) (); Sewell v. Brookbank, 581 P.2d 267, 270 (Ariz. Ct. App. 1978...
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