Newcombe v. Adolf Coors Co.
| Citation | 157 F.3d 686 |
| Decision Date | 22 September 1998 |
| Docket Number | No. 95-55688,95-55688 |
| Parties | , 26 Media L. Rep. 2364, 98 Cal. Daily Op. Serv. 7327, 98 Daily Journal D.A.R. 10,161 Donald NEWCOMBE, Plaintiff-Appellant, v. ADOLF COORS COMPANY; Foote, Cone and Belding; and Time, Inc., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Joseph J. Iacopino, Pacific Palisades, CA, for plaintiff-appellant.
Henry L. Mason, III, Sidley & Austin, Chicago, IL; James M. Harris, Sidley & Austin Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-94-02282-SVW.
Los Angeles, CA, for defendants-appellees.
Before: HUG, Chief Judge, FERNANDEZ and RYMER, Circuit Judges.
Donald Newcombe, a former major league baseball all-star appeals the district court's order denying his motion to remand to state court due to lack of diversity, and the grant of summary judgment in favor of the defendants on all claims of various torts arising from the publication of a beer advertisement allegedly bearing his likeness. In this diversity action, Newcombe contends that his likeness and identity were used without his permission in an advertisement for Killian's Irish Red Beer, and that this violated California's statutory and common law protections against commercial misappropriation. Newcombe also contends that the advertisement was negligently created, that the defendants intentionally inflicted emotional distress upon him and that because he is a known recovering alcoholic, using his likeness in a beer advertisement was defamatory. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part.
Newcombe is a former major league baseball all-star who pitched for the Brooklyn Dodgers and other teams from 1949 until 1960. He had previously starred in the so-called Negro leagues and was one of the first African-American players to play in the major leagues after Jackie Robinson broke the color barrier in 1947. Newcombe is the only player in major league history to have won the Most Valuable Player Award, the Cy Young Award, and the Rookie of the Year Award. He was a four-time member of the National League All Star Team, he batted over .300 in four different seasons, and had the most wins of any pitcher in the National League in 1950, 1951, 1955, and 1956.
Newcombe's baseball career was cut short due to his service in the Army and a personal battle with alcohol. He is a recovering alcoholic and he has devoted a substantial amount of time using his fame to advocate the dangers of alcohol, including serving as a spokesperson for the National Institute on Drug and Alcohol Abuse pursuant to presidential appointments by Richard Nixon, Gerald Ford and Ronald Reagan. He is currently the Director of Community Relations with the Los Angeles Dodgers, where he continues an active role in fighting alcohol abuse.
Killian's Irish Red Beer, owned by Coors Brewing Co., published an advertisement in the February 1994 Sports Illustrated "swimsuit edition" that featured a drawing of an old-time baseball game. The drawing was on the left half of the full-page advertisement while the right half was filled with text and a picture of a glass of beer. The baseball scene focused on a pitcher in the windup position and the background included a single infielder and an old-fashioned outfield fence. The players' uniforms did not depict an actual team, and the background did not depict an actual stadium. However, Newcombe, along with family, friends and former teammates, immediately recognized the pitcher featured in the advertisement as Newcombe in his playing days.
Newcombe filed suit in California state court on March 10, 1994, alleging that his identity had been misappropriated in violation of California statutory and common law, that the advertisement was defamatory because it portrayed him--a recovering alcoholic--as endorsing beer, that the advertisement was negligently created, and that the defendants intentionally inflicted emotional distress upon him. He sought to enjoin the advertisement from future publication, and he asked for $100,000,000 in damages. In his complaint, Newcombe named Coors, Foote Cone & Belding Advertising ("Belding") (the creator of the ad) and Time Inc. (the publisher of Sports Illustrated ) as defendants ("the defendants"), and included 100 "Doe" defendants--those who were "responsible in some While denying that the pitcher in the advertisement was a "likeness" of Newcombe, Coors admitted that the drawing in the color advertisement was based on a newspaper photograph of Newcombe pitching in the 1949 World Series. The drawing and the newspaper photograph are virtually identical, as though the black and white newspaper photo had been traced and colored in. The only major differences between the newspaper photograph of Newcombe and the drawing of him are that the pitcher's uniform number has been changed from "36" to "39," and the bill of the hat in the drawing is a different color from the rest of the hat. Otherwise, the drawing in the advertisement appears to be an exact replica of the newspaper photograph of Newcombe.
manner for the events and happenings" referred to in the complaint. The defendants invoked diversity jurisdiction and removed this action to federal court on April 8, 1994.
Prior to filing this lawsuit, Newcombe allegedly made repeated requests of the defendants to divulge the identity of the artist who drew the scene portrayed in the advertisement--the name "Cassidy" was signed at the bottom of the advertisement--so that the artist could be named as a defendant, but the defendants honored the artist's request not to have his name disclosed and did not divulge this information. During discovery--the first time the defendants were legally obligated to disclose information about the artist--they informed Newcombe that the artist's full name was Michael Cassidy and that he lived in Del Mar, California.
Immediately after learning that Cassidy was a resident of California, Newcombe filed a motion on August 29, 1994, to have the case remanded to state court because Newcombe is also a California resident, thus destroying diversity. The district court denied the motion after finding that Cassidy need not be joined as a defendant because he was neither a necessary nor indispensable party under Fed.R.Civ.P. 19. Six months later, the district court granted summary judgment in favor of the defendants on all claims. Newcombe now appeals.
Newcombe first argues that remand to state court is necessary because removal was improper in the first instance. We review the propriety of removal de novo because it is a question of federal subject matter jurisdiction. Kruse v. State of Hawaii, 68 F.3d 331, 333 (9th Cir.1995).
At the time the defendants sought to remove this action to federal court, there was complete diversity among the parties and the matter in controversy was in excess of $50,000, thus meeting the requirements for removal. See 28 U.S.C. § 1332(a); 28 U.S.C. § 1441(a). 1 Newcombe contends that there was not complete diversity because the defendants were aware that he intended to add Cassidy as a defendant and that Cassidy's presence would destroy diversity. Because the defendants concealed Cassidy's identity until after they removed this action to federal court, Newcombe argues, the defendants misrepresented to the court that there was complete diversity when in fact there was not. Newcombe's claim must fail.
First, 28 U.S.C. § 1441(a) explicitly provides that the citizenship of defendants sued under fictitious names shall be disregarded for purposes of removal. As such, the district court was correct in only considering the domicile of the named defendants. Second, the defendants were under no legal obligation to disclose the artist's identity prior to discovery. Therefore, we cannot agree with Newcombe that the defendants improperly concealed Cassidy's identity. Furthermore, equity does not require the result requested by Newcombe. There is no indication that Newcombe attempted to independently ascertain the identity of the artist prior to filing this lawsuit, and even if he did, there is no indication that the defendants attempted to thwart these efforts. Newcombe filed this suit knowing that there Newcombe also argues that the district court should have granted his motion to remand this action to state court once Cassidy's identity and domicile were divulged because Cassidy's presence destroyed diversity of citizenship. 2 The district court denied the motion to remand after determining that under Fed.R.Civ.P. 19, Cassidy was neither a necessary nor indispensable party. For the reasons articulated below, we review for an abuse of discretion the district court's decision not to allow joinder of a party that would destroy diversity.
was complete diversity among the named defendants and that removal was a real possibility. Newcombe could have foreclosed the possibility of removal by delaying filing suit until he could add a non-diverse defendant; he chose not to do so and instead filed suit less than a month after first viewing the ad. Because the defendants did not act improperly and because the statutory requirements for removal were met, removal was proper.
Once removal has occurred, the district court has two options in dealing with an attempt to join a non-diverse party. 28 U.S.C. § 1447(e) provides that
[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.
The language of § 1447(e) is couched in permissive terms and it clearly gives the district court the discretion to deny joinder. Because the decision regarding joinder of...
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