Edme v. Internet Brands, Inc.

• Decision Date: 16 September 2013
• Docket Number: No. 12 CV 3306(DRH)(GRB).,12 CV 3306(DRH)(GRB).
• Citation: 968 F.Supp.2d 519
• Parties: Shana EDME, Plaintiff, v. INTERNET BRANDS, INC., d/b/a Modelmayhem.com, Media Takeout.com, LLC, and Bossip, d/b/a Bossip.com, Defendants.
• Court: U.S. District Court — Eastern District of New York

968 F.Supp.2d 519

Shana EDME, Plaintiff,

v.INTERNET BRANDS, INC., d/b/a Modelmayhem.com, Media Takeout.com, LLC, and Bossip, d/b/a Bossip.com, Defendants.

No. 12 CV 3306(DRH)(GRB).

United States District Court,

E.D. New York.

Sept. 16, 2013.

David Gordon, Esq., Highmount, NY, Attorney for Plaintiff.

Foley & Lardner LLP by Yonaton Aronoff, Esq., New York, NY, Attorneys for Defendant Bossip.com.

Henry R. Kaufman, P.C. by Henry R. Kaufman, Esq., Michael K. Cantwell, Esq., New York, NY, Attorneys for Defendant Media Takeout.com LLC.

Ervin Cohen & Jessup LLC, by Patrick A. Fraioli, Esq., Beverly Hills, CA, Attorneys for Defendant Internet Brands, Inc.

iGeneral Counsel, P.C. by Wendy E. Giberti, Esq., Beverly Hills, CA, Attorneys for Defendant Internet Brands, Inc.

MEMORANDUM AND ORDER

HURLEY, Senior District Judge:

Shana Edme (“Edme” or “plaintiff”) commenced this action against Internet Brands, Inc. d/b/a Modelmayhem.com (“Modelmayhem”), Bossip d/b/a Bossip.com (“Bossip”), and Media Takeout.com, LLC (“Media Takeout”) (collectively, “defendants”) for purportedly violating her right to privacy under New York Civil Rights Law §§ 50 and 51. Presently before the Court is defendant Modelmayhem's motion to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(2) for lack of personal jurisdiction and all defendants' motions to dismiss the Amended Complaint pursuant to Rule 12(b)(6) for failure to state a claim. For the reasons set forth below, the Rule 12(b)(6) motions by Modelmayhem and Bossip are granted while Media Takeout's motion is denied.

BACKGROUND

The following facts are taken from the Amended Complaint and are presumed true for purposes of these motions.

In 2008, Edme joined Modelmayhem—a modeling industry website with over 60,000 members nationwide—to market her services and further her modeling career. (Am. Compl. ¶¶ 6, 15.) Modelmayhem is owned and operated by Internet Brands. ( Id. ¶ 7.) At all relevant times, Modelmayhem represented that its privacy policy would allow for a member's picture portfolioto be viewed by others if that member gave explicit permission. ( Id. ¶ 17.) Plaintiff never gave Modelmayhem permission for her portfolio, which contained several photographs of her modeling lingerie, to be viewed or disseminated. ( Id. ¶¶ 18, 20.)

Edme states that on or before August 4, 2011, Modelmayhem “released several pictures of the [p]laintiff's lingerie photographs to the online media.” (Am. Compl. ¶ 19.) On August 4, 2011, Edme discovered that her lingerie photographs from her Modelmayhem account had been republished on Media Takeout, a blog-style gossip website which devotes considerable time publishing posts about famous women. ( Id. ¶¶ 8, 10, 21.) A false story identifying Edme as celebrity Kimora Lee Simmons' “lingerie model” sister was posted on Media Takeout's front page and was accompanied by several of Edme's lingerie photographs.¹ ( Id. ¶¶ 21–22.) The article allowed for it to be emailed or republished on various social networking sites. ( Id. ¶¶ 23–24.) Following the article and photographs were “several hundred email comments from people nationwide who had seen the photos and read the article—many of the comments being derogatory and sexual in nature.” ( Id. ¶ 26.)

Later that day, Bossip—a website featuring African–American celebrity gossip and entertainment news—also posted a story about plaintiff and Kimora Lee Simons with an accompanying lingerie photograph from plaintiff's Modelmayhem account. (Am. Compl. ¶¶ 12, 27–28.) Bossip's story featured the following headline: “Rumor Control: Kimora Lee Simmons Says ‘That Lil Trashy Lingerie Wearing Heffa Is NOT My Sister.’ ” ( Id. ¶ 27.) Bossip's article debunked Media Takeout's report that Edme is the sister of Kimora Lee Simons.² ( Id. ¶¶ 27–28.) Similar to the article posted by Media Takeout, Bossip's article was followed by numerous online responses. ( Id. ¶ 29.) These articles spread throughout the internet and were republished by websites such as “Huffingtonpost.com,” “Hollywood.com,” and others. ( Id. ¶ 32.)

Based on the above, Edme commenced this action by filing a Complaint on July 3, 2012. Plaintiff brings one claim against the defendants, namely that they violated her right to privacy under Sections 50 and 51 of the New York Civil Rights Law. In response, all three defendants have moved to dismiss the Amended Complaint. First, Modelmayhem alleges that this action should be dismissed as plaintiff contractually agreed to submit any and all disputes with it to courts of proper jurisdiction in California. To the extent this argument is rejected, Modelmayhem also contends that plaintiff fails to state a claim for invasion of privacy as she does not allege that it used her photos, likeness, or name for commercial purposes.³ As for defendants Media Takeout and Bossip, they argue that plaintiff's invasion of privacy claim fails to state a claim as their use of plaintiff's photographs and name fall under the newsworthiness exception and therefore cannot be considered a use for commercial purposes. These arguments will be addressed in turn.

DISCUSSION

I. Modelmayhem's Motion to Dismiss Pursuant to a Forum Selection Clause⁴A. Legal Standard

Neither the Supreme Court nor the Second Circuit has “specifically designated a single clause of Rule 12(b) as the ‘proper procedural mechanism to request a dismissal of a suit based upon a valid forum selection clause.’ ” Asoma Corp. v. SK Shipping Co., 467 F.3d 817, 822 (2d Cir.2006) (quoting New Moon Shipping Co. v. MAN B & W Diesel AG, 121 F.3d 24, 28 (2d Cir.1997)); see also Cfirstclass Corp. v. Silverjet PLC, 560 F.Supp.2d 324, 326–27 (S.D.N.Y.2008) (“There is a split of authority in the Second Circuit regarding the appropriate procedural mechanism by which to enforce a forum selection clause.”). Here, Modelmayhem styles its motion under Rule 12(b)(2) for lack of personal jurisdiction. Although the Second Circuit has “refused to pigeon-hole [forum selection clause] claims into a particular clause of Rule 12(b),” Asoma Corp., 467 F.3d at 822,Rule 12(b)(2) has not been one of the subsections utilized by movants seeking to dismiss an action based on a forum selection clause.⁵See TradeComet.com LLC v. Google, Inc., 647 F.3d 472, 475 (2d Cir.2011) (“We have affirmed judgments that enforced forum selection clauses by dismissing cases for lack of subject matter jurisdiction under Rule 12(b)(1), for improper venue under Rule 12(b)(3), and for failure to state a claim under Rule 12(b)(6)” (citations omitted)); see also Nippon Express U.S.A. (Ill.), Inc. v. M/V Chang Jiang Bridge, 2007 WL 4457033, at *3 (S.D.N.Y. Dec. 13, 2007) (“Courts in this Circuit appear to prefer Rule 12(b)(3) as the procedural device used to enforce a forum selection clause.”). While the applicable case law does not prevent the Court from considering Modelmayhem's motion under Rule 12(b)(2), for sake of clarity and consistent with the preference in this Circuit, the Court will rely on Rule 12(b)(3) to assess the motion.⁶

When a defendant challenges the venue of the court, the plaintiff has the burden to establish that venue is proper. See Cold Spring Harbor Lab. v. Ropes & Gray LLP, 762 F.Supp.2d 543, 551 (E.D.N.Y.2011). Courts may consider materials outside the pleadings when deciding a motion for improper venue. See e.g., Martinez v. Bloomberg LP, 883 F.Supp.2d 511, 513 (S.D.N.Y.2012); TradeComet.com LLC, 693 F.Supp.2d at 375 n. 3. “If a court chooses to rely on pleadings and affidavits” as opposed to conducting an evidentiary hearing, “the plaintiff need only make a prima facie showing of venue.” Gulf Ins. Co., 417 F.3d at 355 (internal quotation marks, citation, and brackets omitted). In analyzing whether a plaintiff has made the requisite showing, courts “view all the facts in a light most favorable to plaintiff.” Phillips v. Audio Active Ltd., 494 F.3d 378, 384 (2d Cir.2007).

B. Enforceability of the Forum Selection Clause

Modelmayhem claims that this case, as it relates to Modelmayhem, does not belong in the Eastern District of New York because the “Terms of Use” found on its website contains a forum selection clause.⁷ According to Modelmayhem, the Terms of Use are binding on Edme as a valid contract and, based on the forum selection clause within the “Terms of Use,” California courts have exclusive jurisdiction over any and all disputes arising out of or related to the use of Modelmayhem's website. The applicable portion of the provision in question reads as follows:

If there is any claim or dispute about or involving the Model Mayhem Services, you agree that the claim or dispute will be governed by the laws of the State of California, United States of America, without regard to conflict of law provisions. You agree to and hereby submit to exclusive personal jurisdiction and venue in the state and federal courts located in the County of Los Angeles, California and the Central District Court, California, respectively, with respect to any such matters, and you agree to waive any and all objections to jurisdiction and to venue.

(Pl.'s Opp'n, Ex. B.)

The Second Circuit has established a four part analysis for courts to consider when determining whether to dismiss an action based on a forum selection clause. See S.K.I. Beer Corp. v. Baltika Brewery, 612 F.3d 705, 708 (2d Cir.2010); Phillips, 494 F.3d at 383. The first three parts of the analysis are as follows:

“The first inquiry is whether the clause was reasonably communicated to the party resisting enforcement. The second step requires us to classify the clause as mandatory or permissive, i.e., to decide whether the parties are required to bring any dispute to the designated forum or simply permitted to do so. Part three asks whether the claims and parties involved in the suit are subject to the forum selection clause.”

Phillips, 494 F.3d at 383 (citations omitted). “If the forum clause was communicated to the resisting party, has...