Pinder v. 4716 Inc.

• Decision Date: 14 October 2020
• Docket Number: No. CV-18-02503-PHX-RCC,CV-18-02503-PHX-RCC
• Citation: 494 F.Supp.3d 618
• Parties: Lucy PINDER, et al., Plaintiffs, v. 4716 INCORPORATED, et al., Defendants.
• Court: U.S. District Court — District of Arizona

494 F.Supp.3d 618

Lucy PINDER, et al., Plaintiffs,

v.4716 INCORPORATED, et al., Defendants.

No. CV-18-02503-PHX-RCC

United States District Court, D. Arizona.

Signed October 14, 2020

Filed October 15, 2020

Adam Patterson Boyd, Amy Marie Wilkins, John Taylor Swick, Wilkins Law Firm PLLC, Phoenix, AZ, John V. Golaszewski, Pro Hac Vice, Casas Law Firm PC, New York, NY, Joseph N. Casas, Pro Hac Vice, Casas Law Firm PC, Helotes, TX, for Plaintiffs.

David W. Dow, Jennifer Lauren Ghidotti, Law Offices of David W Dow PC, Phoenix, AZ, Kenneth Joseph Peace, Mitchell J. Resnick, Shlomit Robbins Gruber, Resnick & Louis PC, Scottsdale, AZ, for Defendants.

ORDER

Raner C. Collins, Senior United States District Judge

This is the Court's second summary judgment order in a series of cases across the country pertaining to the unlawful use of models’ photos in advertisements for strip clubs.¹ Here Plaintiffs Lucy Pinder, Ana Cheri, and Irina Voronina ("Plaintiffs")² allege that Defendant 4716 Incorporated, d/b/a Hi Liter ("Defendant" or "Hi Liter"), posted Facebook advertisements using Plaintiffs’ image without permission. Because the issues are nearly identical, much of the analysis in the instant order reflects the previous case with few exceptions. Plaintiffs raise state law claims of right of publicity/misappropriation of likeness, and false light/invasion of privacy. In addition, Plaintiffs raise a two-part claim under the Lanham Act for false advertising and false association.³ Both parties have filed motions for summary judgment.⁴ This matter has been extensively briefed, and oral arguments were held on September 15, 2020. (Docs. 74–75, 81–82, 89–90. 94–95, 97–98, 100, 102, 105.) The Court now rules.

I. Summary Judgment Standard of Review

A court may grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party "show 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." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Fed. R. Civ. P. 56(c). An issue is "genuine" when the disputed facts "could reasonably be resolved in favor of either party." Ellison v. Robertson , 357 F.3d 1072, 1075 (9th Cir. 2004). But a disputed fact is only material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

If the moving party establishes there is no genuine issue of material fact, then the non-movant must come forth with evidence that there is a genuine disputed factual issue that may change the outcome of the lawsuit in the non-movant's favor. Id. at 248, 250, 106 S.Ct. 2505. This showing does not have to be unquestionable; however, the non-movant "may not rest upon the mere allegations or denials of [his] pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248, 106 S.Ct. 2505 ; Fed. R. Civ. P. 56(e).

In general, a court must consider the evidence while making all inferences in favor of the non-moving party. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. However, with dueling summary judgment motions, the court "review[s] each motion ... separately, giving the non[-]moving party for each motion the benefit of all reasonable inferences." Brunozzi v. Cable Commc'ns, Inc. , 851 F.3d 990, 995 (9th Cir. 2017). "Where the parties file cross-motions for summary judgment, the court must consider each party's evidence, regardless under which motion the evidence is offered." Las Vegas Sands, LLC v. Nehme , 632 F.3d 526, 532 (9th Cir. 2011). Meaning, evidence from one party is not limited to that party's motion for summary judgment; a court may consider evidence from defendant's motion to determine plaintiff's motion and vice versa. See Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two , 249 F.3d 1132, 1136–37 (9th Cir. 2001).

However, the necessary showing for each party to obtain summary judgment depends upon that party's burden of proof. And so, "a moving party with the burden of persuasion must establish beyond controversy every essential element of [its claim]." Pub. Storage v. Sprint Corp. , No. CV 14-2594-GW PLAX, 2015 WL 1057923, at *4 (C.D. Cal. Mar. 9, 2015) (quoting S. Cal. Gas Co. v. City of Santa Ana , 336 F.3d 885, 888 (9th Cir. 2003) ). The party without such burden need only (1) provide "evidence negating an essential element" of a claim or (2) demonstrate that the non-moving party "does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Cos., Ltd. v. Fritz Cos., Inc. , 210 F.3d 1099, 1102 (9th Cir. 2000).

II. Admissibility of Facebook Advertisements

As a threshold matter, Defendant argues that the entire case should be dismissed because Plaintiffs cannot establish the proper foundation for the offending Hi Liter Facebook postings and therefore the ads are not admissible. Because Plaintiffs did not see the images, Defendant states, there is no litigant who could testify to first-hand knowledge of the postings, and so there is no way to prove that they were posted on Defendant's Facebook page. At the summary judgment stage, Defendant claims, this failure is fatal to Plaintiffs’ case.

Plaintiffs counterargue that they are suing Defendant for using Plaintiffs’ images in advertising, and how the advertisements ended up on Defendant's Facebook page is irrelevant. Plaintiffs state that they do not need to have personally viewed the publication for the offending posts to be considered admissible and stated during oral argument that they would have no problem laying the foundation for the ads. Furthermore, Defendant has never directly denied the postings were on its Facebook page, and Defendant's claim that there were unauthorized posts at some point prior to litigation is a weak attempt to divert its liability.

"A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of Am. , 285 F.3d 764, 773 (9th Cir. 2002). But, "it is the admissibility of the contents of evidence—not its form —that determines whether evidence is admissible for purposes of avoiding summary judgment." Ericson v. City of Phoenix , No. CV-14-01942-PHX-JAT, 2016 WL 6522805, at *8 (D. Ariz. Nov. 2, 2016) (citing Fraser v. Goodale , 342 F.3d 1032, 1036–37 (9th Cir. 2003), cert. denied , 541 U.S. 937, 124 S.Ct. 1663, 158 L.Ed.2d 358 (2004) ) (emphasis in original); Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ("We do not mean that the non[-]moving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment."); JL Beverage Co., LLC v. Jim Beam Brands Co. , 828 F.3d 1098, 1110 (9th Cir. 2016) (permitting evidence that is inadmissible in form as long as it is possibly admissible at trial); Block v. City of Los Angeles , 253 F.3d 410, 418–19 (9th Cir. 2001) (stating evidence need not be admissible in form if it meets requirements of Fed. R. Civ. P. 56 ). Moreover, even "[w]hen a party opposing summary judgment fails to comply with the formalities of Rule 56, a court may choose to be somewhat lenient in the exercise of its discretion to deal with the deficiency." Sch. Dist. No. 1J v. ACandS, Inc. , 5 F.3d 1255, 1261 (9th Cir. 1993).

Depending on the circumstances, the content of the Facebook ads may be admissible through several avenues. A Facebook post may meet the requirements of a business record under Federal Rule of Evidence 803(6) that is self-authenticating under Rule 902(11). See, e.g. , Randazza v. Cox , No. 12-cv-2040-JAD-PAL, 2014 WL 1407378, at *4 (D. Nev. Apr. 10, 2014) (YouTube video self-authenticating if certified by custodian of records in accordance with hearsay exception for business record); United States v. Hassan , 742 F.3d 104, 134 (4th Cir. 2014) (Facebook pages and YouTube videos self-authenticating under 902(11)). Under this scenario, no extrinsic evidence of authenticity would be necessary for admissibility. Fed. R. Evid. 902(11). While this may not be sufficient to demonstrate who posted the offending ads, it could establish that the post existed on Hi Liter's Facebook page, and that the images have not been altered in any fashion. See Hassan , 742 F.3d at 134.

In addition, Plaintiffs may be able to lay the foundation for admission of the screenshot of the Facebook page through an internet archive service. Archived websites may sometimes be afforded judicial notice. See, e.g., Under a Foot Plant Co. v. Exterior Design, Inc. , No. 6:14-cv-01371-AA, 2015 WL 1401697, at *4 (D. Md. Mar. 25, 2015) ("District courts have routinely taken judicial notice of content from The Internet Archive."); but see Open Text S.A. v. Box, Inc. , No. 13-cv-04910-JD, 2015 WL 428365, at *2 (N.D. Cal. Jan. 30, 2015) (archived website printouts not afforded judicial notice without certification from representative).

Moreover, even circumstantial evidence can authenticate the content of a Facebook post "where a document's contents, in conjunction with other circumstances, reflect distinctive characteristics." See People v. Curry , No. 2-18-0148, ––– Ill.Dec. ––––, ––– N.E.3d ––––, 2020 WL 5423045, at *9 (Ill. App. Ct. Sept. 10, 2020) (citing United States v. Browne , 834 F.3d 403, 411–12 (3d Cir. 2016) ); see also State v. Griffith , 247 Ariz. 361, 449 P.3d 353, 357 (Ariz. Ct. App. 2019) (Facebook post "may be admitted if reasonable extrinsic evidence tends to show the party made it."); United States v. Farrad , 895 F.3d 859, 878 (6th Cir. 2018) (Facebook photo of defendant admissible when other evidence suggested photos were what they claimed to be). The alleged Hi Liter advertisement's web address indicates it originated from "hilitershowclub," the ads use the Hi Liter username, and the webpage includes distinctive background imagery and fonts. These elements could plausibly make...