Kyser-Smith v. Upscale Communications, Inc.
| Decision Date | 17 January 1995 |
| Docket Number | Civ. A. No. 94-D-58-N. |
| Citation | 873 F. Supp. 1519 |
| Parties | Kimberly KYSER-SMITH, Plaintiff, v. UPSCALE COMMUNICATIONS, INC., Bovanti Communication, Inc., Sally Beauty Company, Inc., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Terry G. Davis, Amardo Wesley Pitters, Montgomery, AL, for plaintiff.
Donald Ellis, Decatur, GA, for Upscale and Bovanti.
Henry Clay Barnett, Jr., William Rufus King, Montgomery, AL, for Sally Beauty Co.
De MENT, District Judge.
This matter is before the court on defendants Upscale Communications, Inc. and Bovanti Communications, Inc.'s motions for summary judgment accompanied by supporting briefs, exhibits and affidavits. The defendants filed their individual motions on July 25, 1994. Defendants Upscale Communications, Inc. and Bovanti Communications, Inc. filed supplemental briefs on August 15, 1994 and August 24, 1994, respectively. Plaintiff Kimberly Kyser-Smith responded in opposition to each motion on August 24, 1994.
Because the defendants' motions involve similar issues and arise from the same set of facts, the court will consolidate the motions and address them simultaneously. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court issues the following opinion.
This court has jurisdiction over this action pursuant to 28 U.S.C. § 1441 (removal jurisdiction) and 28 U.S.C. § 1332 (diversity jurisdiction). Diversity jurisdiction is proper because complete diversity exists between the parties and the amount in controversy exceeds $50,000, exclusive of interest and costs. Personal jurisdiction and venue are uncontested.
On a motion for summary judgment, the court is to construe the evidence and factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has stated:
The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
In further elaboration on the summary judgment standard, the court has said that Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). Summary judgment is not proper "if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. See Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).
1) Plaintiff Kimberly Kyser-Smith is citizen of Montgomery, Ala.
2) Defendant Upscale Communications, Inc. is a Georgia corporation with its principal place of business in Atlanta, Ga.
3) Defendant Bovanti Communications, Inc. is a Georgia corporation with its principal place of business in Atlanta, Ga.
Viewed in a light most favorable to the plaintiff, the court finds the following facts to be relevant and controlling as to the plaintiff's claims against Bovanti Communications, Inc. ("Bovanti") and Upscale Communications, Inc. ("Upscale"):
Plaintiff Kimberly Kyser-Smith ("plaintiff") filed this diversity action on December 10, 1993, alleging breach of contract (Count I), the tort of invasion of privacy (Counts II and III), the equitable theory of unjust enrichment (Count IV), and fraud and deceit (Count V). The facts surrounding this lawsuit arise from the plaintiff's pursuit of a professional modeling career.
The plaintiff's action against Bovanti and Upscale derives from facts underlying two alleged contracts. The contracts at issue were allegedly entered into on or about November 7, 1990 ("1990 contract") and on or about July 28, 1991 ("1991 contract").
As to the plaintiff's breach of contract claims against Bovanti, the parties do not challenge the material terms of the contracts. Rather, the parties are in dispute as to with whom the plaintiff entered into a contract. Specifically, the plaintiff claims that she entered into both contracts with Bovanti, through its agent Michael Bohannon. Bovanti, on the other hand, claims that the two contracts were in fact between her and Bohannon Modeling Agency, a division of Bohannon Enterprises, Inc. The president and chief executive officer of both Bovanti and Bohannon Enterprises, Inc. is Michael Bohannon. At all relevant times to this action, the plaintiff communicated and worked with Michael Bohannon.1
As to the 1990 contract, the plaintiff seeks relief only from Bovanti based upon breach of contract or, in the alternative, the theory of unjust enrichment. The plaintiff claims that after her free "photography shoot," discussed supra footnote 1, she paid Bovanti $325 for a second photography session in Atlanta, Ga., whereby Bovanti allegedly was to provide her 500 composite sheets, in addition to various color and black-and-white prints. The plaintiff claims that despite continual telephone calls and trips to Atlanta, Bovanti, through its agents Michael Bohannon and Anita Bohannon, never gave her the composite sheets as promised.2
As to the 1991 contract, the plaintiff claims relief from both Bovanti and Upscale. The plaintiff states that Michael Bohannon asked her to participate in an audition in Atlanta, Ga., wherein participants would be selected to appear in publications that advertise Bronner Brothers, Inc.'s ethnic hair care and beauty products. Bronner Brothers, Inc. is an affiliate of Upscale. Approximately thirty days before the audition, Nathaniel Bronner, Jr., who works for both Bronner Brothers, Inc. and Upscale, interviewed fifteen to thirty potential models, including the plaintiff. In his affidavit, Nathaniel Bronner, Jr. states that he remembers the plaintiff because he thought she "would be very photogenic." Nathaniel Bronner, Jr.'s Aff. at 1.
Subsequently, the plaintiff received a letter from Bohannon Modeling Agency. The letter stated that the agency had selected her to participate in the audition. In pertinent part, the letter states:
Subsequently, the plaintiff received by mail a release form, which she was to sign and return by mail. The release agreement provides in pertinent part:
It is undisputed that the plaintiff did not sign the release form. The plaintiff alleges that when she arrived at the audition without the signed release, no one told her that she could not participate. The plaintiff contends that the only representation made to her was that if she were selected, she would be notified and compensated. Subsequently, the plaintiff's photograph, which was taken at the "print Photo session," appeared in Upscale magazine, allegedly without her consent. Upscale magazine is published monthly by the defendant Upscale.
The plaintiff alleges that the advertisement, which appeared in two issues3 of Upscale magazine, contains "strong sexual overtones" and interjects the "subliminal message" of "Hot Sex." The full-page, color advertisement promotes one of Bronner Brothers, Inc.'s products called "HOT SIX OIL." The advertisement contains a photograph of the plaintiff in a low-cut red-sequin dress: The words, "HOT SIX OIL," are printed in all capital letters across the top. The actual bottled product, which is clearly labelled "HOT SIX OIL," also is pictured in the advertisement. In addition, a caption in the lower left-hand corner lists the six different oils included in the product, hence, the name "Hot Six Oil."
As to both advertisements, the plaintiff alleges the following: that she did not consent to or authorize the use of her photograph in the advertisement; that she was not compensated for the use of her photograph as promised; that she was never notified that her photograph had been selected; and that she never saw or approved the advertisement before publication.
Under Fed.R.Civ.P. 17(a) "every action shall be prosecuted in the name of the real party in interest." The caption of the...
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