Frazier v. Turning Stone Casino
| Decision Date | 31 March 2003 |
| Docket Number | No. 5:02CV131(FJS/GJD).,5:02CV131(FJS/GJD). |
| Citation | 254 F.Supp.2d 295 |
| Parties | Joseph (Smokin' Joe) FRAZIER, and Rubin Mark, Inc., Plaintiffs, v. TURNING STONE CASINO; Oneida Indian Nation; Chief Ray Halbritter, as an individual and a representative of the Oneida Indian Nation; Edward Brophy, acting individually as a Boxing Promoter in connection with Turning Stone Casino and as a representative of the International Boxing Hall of Fame; Dwayne Stitzer, as an Individual and Marketing Manager, Turning Stone Casino; and the International Boxing Hall of Fame, an offreservation entity, controlled by Edward Brophy, Defendants. |
| Court | U.S. District Court — Northern District of New York |
The Bullard Law Group, Rochester, New York, for Plaintiffs, H. Todd Bullard, of counsel.
Mackenzie Hughes LLP, Syracuse, New York, for Defendants Oneida Indian Nation, Turning Stone Casino, Chief Ray Halbritter, and Dwayne Stitzer, Peter D. Carmen, of counsel.
Zucker Spaeder LLP, Washington, D.C., for Defendants Oneida Indian Nation, Turning Stone Casino, Chief Ray Halbritter, and Dwayne Stitzer, William W. Taylor, III, Michael R. Smith, David A. Reiser, of counsel.
Hancock & Estabrook, LLP, Syracuse, New York, for Defendants Brophy and International Boxing Hall of Fame, Timothy P. Murphy, of counsel.
Plaintiffs' amended complaint asserts three causes of action, all of which are premised upon Defendants' alleged violation of New York Civil Rights Law §§50 and 51. The first cause of action, asserted against all Defendants, asserts that Defendants injured Plaintiff Frazier by misappropriating his image and likeness for advertising and promotional purposes in violation of §§ 50 and 51 of New York Civil Rights Law. The second cause of action, asserted against all Defendants, asserts that Defendants injured both Plaintiffs as a result of the same conduct charged in the first cause of action. The third cause of action, asserts a claim against Defendants Halbritter, Stitzer and Brophy (collectively "the individual Defendants"), alleging that they "acted in concert and by agreement to misappropriate the Plaintiffs image and likeness for commercial gain ... [and that their] agreement to misappropriate Plaintiffs [sic] Smokin Joe's Image was outside of each respective Individuals' [sic] scope of tribal duties." See Amended Complaint at ¶¶ 55, 57. Plaintiffs seek monetary, declaratory, and injunctive relief.1
Presently before the Court are two motions: (1) Defendants' motion to dismiss the amended complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and (2) Plaintiffs' motion for leave to amend their amended complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. After summarizing the facts that underlie this action, the Court will address each of these motions in turn.
On June 8, 2001, Jacquelyn Frazier-Lyde, the daughter of Plaintiff Frazier, engaged in a boxing match at the Turning Stone Casino ("Casino") with Laila Ali-McClain, the daughter to Mohammed Ali. The match was publicized as "Frazier-Ali/Ali-Frazier IV." Prior to the match, in March 2001, Defendants showed Ms. Frazier-Lyde a version of Plaintiff Frazier's image and likeness for use as a poster to promote the match for her approval. Ms. Frazier-Lyde told Defendants that she could not authorize the use of her father's image and likeness and that they would have to secure such authorization from Plaintiffs. Defendants did not secure such authorization but, instead, sought only to contract with Plaintiff Frazier for his personal appearance at the match. Defendants were advised that Plaintiff Frazier would not be present at the Casino during the June 8, 2001 boxing event in any capacity.
Without Defendants' prior knowledge, Plaintiff Frazier attended the June 8, 2001 event as a member of the audience to support his daughter. During the event, Plaintiff Frazier entered the casino area of the Casino's main building and saw that his image and likeness had been superimposed on the surface of certain "high roller" gaming tables. The same image and likeness appeared on programs, leaflets, mailings, souvenirs and other party favors that Defendants provided to high rollers and other preferred gambling customers to induce them to attend and to participate in the Casino's gambling activities during and around the time of the June 8, 2001 boxing event. The unauthorized use and display of Plaintiff Frazier's image and likeness occurred on a systematic, continuous, and daily basis from about March 1, 2001, through September 30, 2001, as part of Defendants' marketing and promotion of the June 8, 2001 "Frazier-Ali/Ali-Frazier IV" event.
Plaintiff Frazier had not previously been associated with gaming or gambling activities, had never used his name, likeness or image in connection with the advertising and/or promotion of such activities except at a charitable fund raiser, and during the past two years had rejected an overseas on-line business opportunity involving endorsement of commercial gambling because it required the use of his name and likeness in connection with a commercial gambling activity. As "a person of Christian faith" Plaintiff Frazier has suffered extreme emotional damage and compensatory loss because Defendants' conduct has "irreparably damaged his reputation, distorted the public image he has established for himself, exploited and abused his property rights in himself and his image and offended his personal sensibilities." See Amended Complaint at ¶ 42.
Based upon these facts, Plaintiffs assert that Defendants' unauthorized use of Plaintiff Frazier's image and likeness on the gaming tables and on leaflets, programs, mailings and party favors violated §§ 50 and 51 of New York Civil Rights Law and that Defendants undertook the improper use of the image and likeness knowingly, intentionally, maliciously, and solely for Defendants' exclusive advertising and marketing benefit and for their commercial and financial gain.
A court must consider a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure before any other motion because a finding that the Court lacks jurisdiction would render all other objections and defenses moot, including the defense of tribal sovereign immunity. See Rhulen Agency, Inc. v. Alabama Ins. Guaranty Ass'n, 896 F.2d 674, 678 (2d Cir.1990) (citations omitted); Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Eons. Autk, 207 F.3d 21, 28 (1st Cir.2000) (citation omitted).
"Federal courts are courts of limited jurisdiction." Perpetual Sec, Inc. v. Tang, 290 F.3d 132, 136 (2d Cir.2002). Under Article III of the United States Constitution, a district court has "jurisdiction to hear cases in which there is a federal question and cases based on the diversity of citizenship of the parties." Id. (citations omitted). " " Id. (quotation omitted).
In the present case, Plaintiffs assert that this Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332(a). They also assert that this Court has federal question jurisdiction over this action pursuant to 25 U.S.C. § 233 and 28 U.S.C. §§ 1330, 1331, 1360, 1362 and 1605. The Court will examine each of these arguments in turn.
1. 28 U.S.C. § 1331
"`Federal question jurisdiction exists where a well-pleaded complaint "establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.'"" Perpetual Sec, 290 F.3d at 137 (quotation omitted). "When deciding whether federal question jurisdiction exists, [a court] must proceed prudently and make pragmatic distinctions between those allegations, if any, that raise substantial questions and those that do not." Id. (citation omitted). In doing so, the court examines "`the nature of the federal question raised in [each] claim to see if it is sufficiently substantial to warrant federal jurisdiction.'" Id. (quotation omitted).
Section 1331 provides that district courts have "original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331 (emphasis added). As the Supreme Court has noted "a `suit arises under the law that creates the cause of action.'" Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850-51, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) (quoting American Well Works Co. v. Layne and Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916)).
In the present case, Plaintiffs argue that "federal question jurisdiction" exists under 28 U.S.C. § 1331 because the case presents questions concerning tribal immunity and the impact upon tribal immunity of certain federal statutes. However, it is clear from Plaintiffs' amended complaint that all three causes of action are created by, and arise under, New York Civil Rights Law §§ 50 and 51. The fact that the Court must review federal statutory and case law to determine whether Plaintiffs may pursue their state law claims against Defendants in federal court does not transform Plaintiffs' action from one arising under New York law into one arising under federal law. See generally Oklahoma Tax Comm'n v. Graham, 489 U.S. 838, 841-42, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989). Moreover, despite Plaintiffs' arguments to the contrary, the mere presence of a tribal sovereign immunity...
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