Ratermann v. Pierre Fabre U.S., Inc.

• Decision Date: 17 January 2023
• Docket Number: 22-CV-325 (JMF)
• Parties: PATTY RATERMANN, Plaintiff, v. PIERRE FABRE USA, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

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PATTY RATERMANN, Plaintiff, v. PIERRE FABRE USA, INC., et al., Defendants.

No. 22-CV-325 (JMF)

United States District Court, S.D. New York

January 17, 2023

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge

In 2020, Plaintiff Patty Ratermann signed a license with Defendant QuickFrame, Inc. (“QuickFrame”) allowing QuickFrame to use her likeness on Instagram. Although the license was limited to Instagram, Ratermann alleges that she later discovered her likeness being used to promote the products of Defendant Pierre Fabre USA, Inc. (“Pierre Fabre”), which does business as Avene on the Avene website; on the websites of Defendants Amazon Inc. (“Amazon”), Walmart, Inc. (“Walmart”), and Ulta Salon, Cosmetics &amp Fragrance, Inc. (“Ulta”); and in a physical store owned and operated by Defendant Walgreen Co. (“Walgreens”). Following that discovery, she filed this lawsuit, bringing claims against one or more Defendants for, among other things, violation of her right to “privacy” and/or “publicity” under Sections 50 and 51 of the New York Civil Rights Law, N.Y Civ. Rights Law §§ 50-51; violation of the Lanham Act, 15 U.S.C. § 1051 et seq.; unfair competition; breach of contract; and fraud.

Now pending are two motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, one filed jointly by Pierre Fabre, Amazon, Walmart, Ulta, and Walgreens, and one filed by QuickFrame.^[1] Defendants raise various arguments, one of which warrants closer analysis because it appears to raise a question of first impression: whether Amazon, Walmart, and Ulta are immune from suit under New York Civil Rights Law Sections 50 and 51 pursuant to Section 230 of the Communications Decency Act (“Section 230”), 47 U.S.C. § 230, or whether an exception to Section 230 immunity, for intellectual property claims, applies. For the reasons that follow, the Court concludes that Amazon, Walmart, and Ulta are immune under Section 230 and, because the gravamen of a claim under Sections 50 and 51 is a violation of the right to privacy, the intellectual property exception does not apply. For that reason and the others discussed below, the Court GRANTS the motions to dismiss with respect to Ratermann's claims against Defendants Amazon, Walmart, Ulta, and Walgreens, and GRANTS in part and DENIES in part the motions with respect to her claims against Defendants Pierre Fabre and QuickFrame.

BACKGROUND

The following facts, taken from the Third Amended Complaint (the “Complaint”), ECF No. 69 (“TAC”), and documents it incorporates by reference, are construed in the light most favorable to Ratermann. See, e.g., Empire Merchs., LLC v. Reliable Churchill LLLP, 902 F.3d 132, 139 (2d Cir. 2018); Kleinman v. Elan Corp., PLC, 706 F.3d 145, 152 (2d Cir. 2013).

Ratermann is a model who has worked with various companies in the fashion industry, including Burberry, Garnier, Uniqlo, and Estee Lauder. TAC ¶ 14. On or around July 9, 2020, she signed a single-use license with QuickFrame giving QuickFrame the right to use her likeness on Instagram, and “only” Instagram. Id. ¶¶ 15, 21; ECF No. 69-1. In or about August 2021, however, Ratermann discovered that her likeness was also being used to advertise Pierre Fabre's Avene products on the Avene website; on the websites of retailers Amazon, Walmart, and Ulta; and “in physical advertisements in stores owned and operated by” Walgreens. TAC ¶¶ 16-17, 18, 20, 23; see also id. at 14-21. Ratermann never gave consent for her likeness to be used for these purposes. Id. ¶¶ 24-25. Thus, she alleges, these advertisements exceeded the scope of the license she had granted QuickFrame. Id. ¶ 21.

Ratermann filed this lawsuit on January 12, 2022. See ECF No. 1. Thereafter, she amended her complaint three times. See ECF Nos. 9, 17, 69. Pierre Fabre, Amazon, Walmart, Ulta, and Walgreens filed a joint motion to dismiss, ECF No. 74; Walgreens filed a supplemental memorandum, ECF No. 78; and QuickFrame filed a separate motion to dismiss, ECF No. 79. After Ratermann filed her oppositions, she agreed to drop certain of her claims. ECF No. 84. The claims that remain are for violation of New York Civil Rights Law Sections 50 and 51 (against all Defendants); violation of Section 43(a) of the Lanham Act (against Pierre Fabre); common-law unfair competition (against Pierre Fabre); breach of contract (against QuickFrame); and fraud (against QuickFrame). See ECF No. 90.

LEGAL STANDARDS

In evaluating a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all facts set forth in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008). A claim will survive a Rule 12(b)(6) motion, however, only if the plaintiff alleges facts sufficient “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully,” id., and cannot rely on mere “labels and conclusions” to support a claim, Twombly, 550 U.S. at 555. If the plaintiff's pleadings “have not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Id. at 570.

DISCUSSION

Defendants advance various arguments for dismissal of Ratermann's claims. The Court will discuss each argument in turn beginning with the arguments that apply to all Defendants and then turning to the arguments made by Pierre Fabre or QuickFrame alone.

A. Impermissible Group Pleading (All Defendants)

First, all Defendants argue that Ratermann's Complaint must be dismissed in its entirety because it fails to comply with Rule 8 of the Federal Rules of Civil Procedure, ECF No. 75 (“Joint Defs.' Mem.”), at 7-8; ECF No. 80 (“QuickFrame Mem.”), at 6-7, which mandates a short and plain statement showing that the pleader is entitled to relief. A complaint “satisfies the requirements of Rule 8(a) [when] it gives [each defendant] fair notice of the basis for [the plaintiff's] claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); see also, e.g., Medina v. Bauer, No. 02-CV-8837 (DC), 2004 WL 136636, at *6 (S.D.N.Y. Jan. 27, 2004) (Chin, J.) (noting that, under Rule 8, a complaint must, “at a minimum, . . . give each defendant fair notice of what the plaintiff's claim is and the ground upon which it rests” (emphasis added) (internal quotation marks omitted)); Tieman v. City of Newburgh, No. 13-CV-4178 (KMK), 2015 WL 1379652, at *25 (S.D.N.Y. Mar. 26, 2015) (“To state a claim against each individually named defendant, Plaintiff must include allegations as to that defendant.” (emphases added)). More specifically, to survive scrutiny under Rule 8, a complaint must disclose sufficient information to permit each defendant “to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery.” Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991).

Measured against these standards, Ratermann's Complaint does have some issues. The Complaint primarily asserts claims against Defendants jointly. See, e.g., TAC ¶¶ 16, 24-27. In doing so, Ratermann alleges that each Defendant was the alter-ego of the other Defendants. TAC ¶ 13. But her “alter-ego” allegations are entirely conclusory and plainly fail as a matter of law. Ratermann provides no factual basis to assert that any Defendant “exercised complete domination” over the others with respect to the transactions at issue, let alone “that such domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiff's injuries.” Key Items, Inc. v. Ultima Diamonds, Inc., No. 09-CV-3729 (HBP), 2010 WL 3291582, at *8 (S.D.N.Y. Aug. 17, 2010). Accordingly, Ratermann's alter-ego claims must be and are dismissed for failure to comply with the requirements of Rule 8.

That said, Ratermann's Complaint does not engage in impermissible group pleading, let alone to a degree that would justify wholesale dismissal. Although the allegations specific to each Defendant are sparse and hardly a model of clarity, they are sufficient for purposes of Rule 8. First, Ratermann describes (and attaches) her contract with QuickFrame, TAC ¶¶ 15, 21; ECF No. 69-1, which provides QuickFrame notice of the principal factual basis for her claims. She further alleges that Pierre Fabre promoted its products using her likeness on its website, www.aveneusa.com. TAC ¶ 23. She alleges that her likeness was used to advertise Avene products through retailers such as Walmart, Amazon, and Ulta. Id. And she alleges that Walgreens displayed physical advertisements using her likeness in its stores. Id. Finally, she attaches to the Complaint images of her likeness allegedly used by each Defendant. Id. Ex. A.

Indeed, there is at least one screenshot attributable to each Defendant (other than QuickFrame). Thus, she provides - though perhaps just barely - a factual basis for distinguishing among Defendants. See Ritchie v. N. Leasing Sys., Inc., 14 F.Supp.3d 229, 235-37 (S.D.N.Y. 2014). Accordingly, the Court declines to dismiss Ratermann's Complaint in its entirety on Rule 8 grounds.

B. New York Civil Rights Law Sections 50 and 51 (All Defendants)

Next all Defendants move to dismiss Ratermann's claims under New York Civil Rights Law Sections 50 and 51. TAC ¶¶ 28-32. Section 50 makes it a misdemeanor for a person or corporation to use “for advertising...