Raymen v. United Senior Ass'n, Inc.

• Decision Date: 20 January 2006
• Docket Number: No. CIV.A. 05-486(RBW).,CIV.A. 05-486(RBW).
• Citation: 409 F.Supp.2d 15
• Parties: Richard RAYMEN, et al., Plaintiffs, v. UNITED SENIOR ASSOCIATION, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

409 F.Supp.2d 15

Richard RAYMEN, et al., Plaintiffs, v. UNITED SENIOR ASSOCIATION, INC., et al., Defendants.

No. CIV.A. 05-486(RBW).

United States District Court, District of Columbia.

January 20, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Christopher Wolf, Bruce E. Boyden, Proskauer Rose LLP, Washington, DC, for Plaintiffs.

James Arthur Johnson, Semmes, Bowen & Semmes, Baltimore, MD, Robert R. Sparks, Jr., Sparks & Craig, LLP, McLean, VA, Jonathan R. Topazian, Semmes, Bowen & Semmes, P.C., Thomas Edward Wilson, Alexander Craig Vincent, Berliner, Corcoran & Rowe, L.L.P., Washington, DC, for Defendants.

MEMORANDUM OPINION

WALTON, District Judge.

On March 9, 2005, the plaintiffs filed this action seeking to prevent the defendants from further using their images in an advertising campaign which challenged various public policy positions taken by the American Association of Retired Persons ("AARP") regarding Social Security reform and the military. Complaint ("Compl.") ¶ 1. Currently before the Court are the defendants' motions to dismiss, and the plaintiffs' opposition thereto.¹ For the reasons set forth below, the Court grants the defendants' motions, dissolves the stipulated order for a preliminary injunction, and dismisses this case.

I. Factual and Procedural Background

On March 3, 2004, the plaintiffs were among 300 citizens of Multnomah County, Oregon who were married pursuant to a newly established right to same-sex marriage in that county. Compl. ¶ 9. While at City Hall awaiting their opportunity to marry, the plaintiffs, Steve Hansen and Richard Raymen, kissed. A photographer from a Portland, Oregon newspaper, the Tribune, captured the kiss in a photograph he took. Id. The photograph was subsequently published in both the Tribune newspaper on March 4, 2004, and later on the Tribune's website. Id. At some later point in time, the Tribune's website photograph was used without permission² as part of an advertisement created by defendant Mark Montini. Id. ¶ 10. The advertising campaign was created for a nonprofit organization, United Senior Association, Inc., which does business under the name USA Next. Id. ¶¶ 7, 10. The advertisement, which features the photograph of the plaintiffs kissing, was part of a campaign by USA Next challenging various public policy positions purportedly taken by the AARP. Id. ¶ 14. Specifically, the advertisement contains two pictures. The first is a picture of an American soldier, who presumably is in Iraq, with a red "X" superimposed over it, and the second is the photograph of the plaintiffs with a green checkmark superimposed over it. The caption under the advertisement reads: "The Real AARP Agenda," id. ¶ 13, suggesting that the AARP opposes the United States military efforts abroad and supports the gay lifestyle. This advertisement ran on the website of The American Spectator magazine from February 15, 2005, to February 21, 2005. Id. ¶ 10.

According to the plaintiffs, the purpose of the advertising campaign was "to incite viewer passions against the AARP because of its alleged support of equal marriage rights for same-sex couples and its alleged lack of support of American troops." Id. ¶ 14. Moreover, the plaintiffs opine that the "advertisement also conveys the message that the plaintiffs ... are against American troops ... and are unpatriotic." Id. ¶ 15. The plaintiffs contend that the advertisement attracted media attention, which then caused an even wider distribution of the advertisement throughout the media. Id. ¶ 16. The plaintiffs assert that because of the advertisement, they "have suffered embarrassment, extreme emotional distress, and the invasion of their privacy." Id. ¶ 20. In addition, the plaintiffs represent that as a result of the false and misleading inference "communicated by the [a]dvertisement about [the] plaintiffs, their reputations as patriotic American citizens has been severely damaged." Id.

Seeking to prevent further use of their images in the advertisement, on March 9, 2005, the plaintiffs filed this action alleging four common-law causes of action — libel; invasion of privacy by portraying their images in a false light; invasion of privacy by appropriating their likeness; and intentional infliction of emotional distress. Id. ¶¶ 27-62. The complaint also seeks permanent injunctive relief and monetary damages. Id. at 13-14. On that same day, the plaintiffs filed a motion for a temporary restraining order and a motion for a preliminary injunction. The Court immediately heard arguments on the plaintiffs' motion for a temporary restraining order on March 9 and March 10, 2005. In light of the expedited hearing, neither defendant had the opportunity to submit substantive legal memoranda in opposition to the plaintiffs' motion and defendant Montini was not present at the argument. At the conclusion of the hearing on March 10, 2005, this Court orally granted the plaintiffs' motion from the bench and later issued a memorandum opinion consistent with that ruling on March 16, 2005. Following the Court's ruling, the parties entered into a stipulated preliminary injunction, alleviating the need for this Court to rule on the plaintiffs' motion for a preliminary injunction. The defendants now seek dismissal of this action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.³

II. Standard of Review

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the alleged facts. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir. 2004) (citing Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994)). "[T]he complaint need only set forth `a short and plain statement of the claim,' Fed.R.Civ.P. 8(a)(2), giving the defendant fair notice of the claim and the grounds upon which it rests." Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir.2003) (citing Conley, 355 U.S. at 47, 78 S.Ct. 99). "Such simplified `notice pleading' is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48, 78 S.Ct. 99. While many well-plead complaints are conclusory, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. Moreover, in deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference into the complaint, and matters about which the Court may take judicial notice. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n. 3 (D.C.Cir.1997). A court may dismiss a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. 99 (footnote omitted).

III. Legal Analysis

The defendants challenge each claim in the plaintiffs' complaint. The Court will address each challenge separately.⁴

A. The Plaintiffs' Libel Claim

The plaintiffs contend that the advertisement in which their image appears projects the view that the AARP supports a gay lifestyle and does not support the United States military efforts abroad. Compl. ¶ 14. And by using their images in the advertisement, the plaintiffs opine that a reasonable person would attribute the views purportedly held by the AARP about the military to the plaintiffs. Id. ¶ 15. Thus, the plaintiffs assert that the defendants have portrayed them as unpatriotic Americans who do not support the United States military. Id. ¶ 28. Moreover, the plaintiffs assert that due to the manner in which they have been portrayed in the advertisement, they have been subjected to "hatred, contempt and ridicule, and [that the defendant's conduct has] diminished the esteem, respect, goodwill and confidence in which the plaintiffs are held." Id. ¶ 30. Accordingly, the plaintiffs contend that they have been defamed and thus have established a claim for libel. Pls.' Opp'n at 5. The defendants' argue, however, that the plaintiffs have failed to state a claim for libel. Specifically, they contend that the advertisement is not capable of a defamatory meaning, either directly or by inference, and that no reasonable person could interpret the advertisement as suggesting that the plaintiffs are unpatriotic Americans. USA Next's Mem. at 11-13; Montini Mem. at 18-23.⁵

Under Oregon law, libel can be established by demonstrating that a communication is capable of a defamatory meaning. Beecher v. Montgomery Ward & Co., Inc., 267 Or. 496, 517 P.2d 667, 669 (1973). In determining whether a communication is defamatory, the Oregon Supreme Court applies the test set forth in the Restatement of Torts. Id.; King v. Menolascino, 276 Or. 501, 555 P.2d 442, 443 (1976); see Bellairs v. Beaverton School Dist., No. Civ. 04-770, 2004 WL 1900417, at *2 (D.Or. Aug. 23, 2004); Restatement (Second) Torts § 559 (1976). Under the Restatement, "`[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'" King, 555 P.2d at 443 (quoting Restatement (First) Torts § 559 (1938)). Accordingly, "[t]o establish actionable defamation, [the] plaintiffs must prove that [the] defendant made a defamatory statement that was false and that was communicated to a third party."...