Morgan v. Hustler Magazine, Inc.
| Decision Date | 10 February 1987 |
| Docket Number | No. C85-476.,C85-476. |
| Citation | 653 F. Supp. 711 |
| Parties | Donda R. MORGAN, Gregory L. Morgan, Plaintiffs, v. HUSTLER MAGAZINE, INC., Flynt Distributing Company, Inc., Larry C. Flynt, Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Peter J. Krembs, Thomas P. Marotta, Gruber, Moriarty, Fricke & Jaros, Cleveland, Ohio, for plaintiffs.
Alan M. Petrov, Mark B. Smith, Gallagher, Sharp, Fulton & Norman, Cleveland, Ohio, for defendants.
The plaintiffs filed the present case in the Court of Common Pleas of Cuyahoga County, Ohio. The case was removed to this Court on the basis of diversity. The plaintiffs' complaint is in three counts and alleges, in substance, the following.
Count One alleges that the plaintiff Donda R. Morgan was engaged in the career of fashion modeling for the period 1970 through 1981. That on or about January 1973, she posed for a professional fashion model photographer in connection with her career as a fashion model. That on or about December 1975, the defendants printed and published a photograph of her on the front cover of Hustler magazine, Volume 2, No. 6, dated December 1975.
She further alleges that Hustler magazine is distributed worldwide and that it contains hard core pictorial and editorial pornography. She further alleges that the prominent display of her on the front cover of Hustler magazine implies that she agrees with and supports the base and tawdry views expressed by the magazine. She alleges that she strongly and sharply disagrees with the views expressed by Hustler magazine. The plaintiff Donda R. Morgan further alleges that the defendants knew, or should have known, that she did not want her photograph published in Hustler magazine.
She alleges that she first became aware of the publication in January 1984. She alleges that as a direct and proximate result of the photograph being published, she has been caused to suffer extreme humiliation, embarrassment, public ridicule and severe mental pain and anguish of a nature no reasonable person could be expected to endure.
In Count Two, plaintiff Donda R. Morgan incorporates, by reference, all of the allegations contained in Count One and, additionally, alleges that the defendants' conduct in their unauthorized publication and distribution of her photograph on the cover of Hustler magazine constituted an invasion of her right of privacy. Plaintiff contends that the defendants' conduct placed her in a false light in the eyes of the public, her friends and relatives, and has thus injured her personal esteem, has reflected disgracefully on her character, has destroyed her peace of mind, and has caused her severe mental and emotional anguish.
Count Three is brought by Gregory L. Morgan, who incorporates, by reference, all of the allegations of Counts One and Two and, in addition, alleges that the unauthorized use, publication and distribution by the defendants of the photograph of plaintiff Gregory L. Morgan's wife has and will continue to cause him to be greatly distressed and humiliated, to suffer great mental anxiety and emotional stress and to be exposed to public ridicule and contempt. He further alleges that the publication and distribution constitutes an invasion of his right to privacy, has reflected disgracefully on his character and has caused great injury to his reputation in the business community.
He further alleges that because of the publication, distribution and use of his wife's picture on the front cover of Hustler magazine by the defendants, which directly resulted in an injury to his wife, he has been deprived of his wife's services: she is now unable to perform her duties in the home in the same manner as before the injury she suffered. As a direct result, plaintiff contends he has been deprived of the society, companionship and assistance of his wife, all to his damage.
The plaintiffs pray for compensatory damages, punitive damages, interest, costs, attorney fees and such equitable and other relief as the Court deems appropriate.
The defendants filed an answer in the form of a general denial, together with a large number of affirmative defenses, including the statute of limitations, laches, waiver, estoppel, release, assumption of risk, contributory negligence, lack of personal jurisdiction, First Amendment protections, consent and failure to state a claim.
In summary, plaintiff Donda R. Morgan has filed her complaint in two counts: Count One alleges a libel/defamation-of-character action and Count Two alleges invasion-of-privacy/false-light cause of action. The plaintiff Gregory L. Morgan's one-count complaint is derivative of his wife's cause of action and encompasses defamation, invasion of privacy and loss of consortium.
It is noted that there is some general reference in Count One to emotional distress which the plaintiffs contend is an independent cause of action for intentional infliction of emotional distress. This will be discussed later in this Order.
The defendants filed a motion for summary judgment together with evidentiary material. The plaintiffs filed a brief in opposition to the defendants' motion for summary judgment together with evidentiary material, and the defendants filed a reply to the plaintiffs' brief in opposition, together with some evidentiary material.
The bases of the defendants' motion for summary judgment are as follows.
The defendants contend that the publication of plaintiff Donda R. Morgan's picture was in the December 1975 issue of Hustler magazine, and that the complaint was filed on January 15, 1985, some nine years after the publication. The defendants contend that the essence of Counts One and Two of the complaint are libel and invasion of privacy. Ohio Rev.Code Ann. § 2305.11(A) provides that an action for libel shall be brought within one year after the cause of action accrues. Ohio Rev.Code Ann. § 2305.09(D) provides that an invasion-of-privacy action must be brought within four years after the cause of action accrued. The defendants contend, therefore, that the causes of action for libel and invasion of privacy are not timely filed because they are barred by the statute of limitations.
The defendants contend that the plaintiff Donda R. Morgan executed a release covering the subject photograph. It is further contended that this release was given to the photographer and that the release is clear and unambiguous. Therefore, defendants argue the release should be enforced and the plaintiffs cannot maintain the actions for libel and invasion of privacy. In support of their position, the defendants cite Aetna Casualty and Surety Co. v. Jackowe, 96 A.D.2d 37, 468 N.Y.S.2d 153 (1983); Shields v. Gross, 58 N.Y.2d 338, 461 N.Y.S.2d 254, 448 N.E.2d 108 (1983); and Sharman v. C. Schmidt & Sons, Inc., 216 F.Supp. 401 (E.D.Pa.1963).
The plaintiffs contend that Count Two of the complaint alleges that Donda R. Morgan was placed in a "false light" by virtue of having her photograph in Hustler magazine. It is the defendants' contention that Ohio has not adopted a cause of action for invasion of privacy under a false-light theory of recovery. Yeager v. Local Union 20, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983). Also see Rinehart v. Toledo Blade Co., 21 Ohio App.3d 274, 487 N.E.2d 920 (1985).
The defendants contend that Gregory L. Morgan cannot maintain an action for defamation or invasion of privacy based on the alleged defamation or invasion of privacy of his wife. The defendants contend that defamation and invasion-of-privacy actions are personal rights and cannot be asserted by a third party. Young v. That Was The Week That Was, 312 F.Supp. 1337 (N.D. Ohio 1969), aff'd, 423 F.2d 265 (6th Cir. 1970).
In addition to these defenses, the defendant Flynt Distributing Company, Inc. claims that it was not involved in the production or distribution of the December 1975 issue of Hustler magazine because Flynt Distributing Company, Inc. was not formed until 1976.
Further, the defendants contend that the plaintiff Donda R. Morgan cannot maintain this action because she is a public figure and therefore must demonstrate actual malice on the part of the defendants, and this cannot be done.
Last, defendants contend that plaintiffs cannot establish a claim for defamation and/or invasion of privacy because they cannot prove falsification of fact.
In response to the defendants' motion for summary judgment, the plaintiffs have filed a brief in opposition together with evidentiary material. The bases of the plaintiffs' opposition are as follows.
It is the plaintiffs' contention that the defendants' statute of limitations argument is not valid. The plaintiffs concede that the statute of limitations for libel is one year, Ohio Rev.Code Ann. § 2305.11(A), and that the statute of limitations for invasion of privacy, Ohio Rev.Code Ann. § 2305.09(D), provides for a four-year statute of limitations. The plaintiffs argue, however, that the statute of limitations for intentional infliction of emotional distress is four years, and that by analogy a libel claim arising from a publication, like invasion of privacy, should be subject to a four-year statute of limitations.
Furthermore, the plaintiffs contend that the discovery rule should apply in situations like the instant case. Thus, according to plaintiffs, the cause of action for libel and invasion of privacy did not accrue until the plaintiffs were aware and discovered the picture on the cover of Hustler magazine.
The plaintiffs concede that Ohio has not yet addressed the issue of whether an action for invasion of privacy or intentional infliction of emotional distress grounded upon a mass media publication accrues at the time of publication or at the time of discovery. The...
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