United States District Court, C.D. California
Amber Coyle, et al.
Michael O'Rourke, et al
Attorneys for Plaintiffs: Not Present.
Attorneys for Defendants: Not Present.
CIVIL MINUTES -- GENERAL
Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE.
Proceedings: (IN CHAMBERS) ORDER RE DEFENDANTS MICHAEL O'ROURKE AND O'ROURKE HOLDINGS, LLC'S MOTION TO DISMISS (DKT. 3); PLAINTIFF'S MOTION TO REMAND AND REQUEST FOR ATTORNEYS' FEES AND COSTS (DKT. 17) (JS-6)
Amber Coyle and Jasmin Dustin (" Plaintiffs") are professional models and citizens of California. Compl., Dkt. 1-1, ¶ ¶ 1-2. Michael O'Rourke and his company, O'Rourke Holdings, LLC (" Defendants"), are also citizens of California. Id. ¶ ¶ 5-9. In January 2012, Defendants paid Plaintiffs to participate in a photo and video shoot for Rock Your Hair, their trademarked line of hair care and related products and services. Id. ¶ ¶ 14, 24. Plaintiffs allege that they entered into oral and written agreements (" Agreements") with Defendants governing the use of the resulting photographs and videos. Id. ¶ ¶ 15-17.
On June 30, 2014, Plaintiffs filed the Complaint in this action in the Los Angeles Superior Court. Dkt. 1-1 at 19, 25. Plaintiffs claim that Defendants have used their images from the photographs and videos for purposes not contemplated by the Agreements. The Complaint advances two causes of action: (i) invasion of privacy in violation of Cal. Civ. Code § 3344; and (ii) misappropriation of likeness in violation of California common law. Id. ¶ ¶ 21-38. On September 11, 2014, Defendants removed the action. Dkt. 1. As the basis for federal jurisdiction, Defendants claimed that Plaintiffs' state law claims were preempted by federal copyright law. Id. On the same day as the removal, Defendants moved to dismiss the Complaint (" Defendants' Motion"), again on the basis of federal preemption. Dkt. 3. Plaintiffs filed an Opposition on October 14, 2014 (" Plaintiffs' Opposition" (Dkt. 18)), and Defendants filed a Reply on October 31, 2014 (" Defendants' Reply" (Dkt. 27)).
On October 1, 2014, the Court issued an order to show cause regarding subject matter jurisdiction. Dkt. 16. Because the defense of federal preemption does not create federal question jurisdiction unless there is " complete preemption, " see infra, and because no other jurisdictional basis was asserted, the Parties were directed to submit memoranda presenting their respective positions as to whether Plaintiffs' causes of action were completely preempted. Each party filed a responsive memorandum on October 16, 2014. Dkts. 21, 22.
On October 14, 2014, Plaintiffs moved to remand the action to Los Angeles Superior Court (" Plaintiffs' Motion"). Dkt. 17. Plaintiffs also requested an award of $10, 000 in attorneys' fees and costs incurred as the result of Defendants' removal. Id. at 18. Defendants filed an Opposition on November 3, 2014 (" Defendants' Opposition" (Dkt. 28)), and Plaintiffs filed a Reply on November 13, 2014 (" Plaintiffs' Reply" (Dkt. 29)).
A hearing on the Motions was conducted on December 8, 2014, and the matter was taken under submission. Dkt. 42. For the reasons stated in this Order, Defendants' Motion is DENIED, as this Court is without jurisdiction to hear it. Plaintiffs' Motion is GRANTED. Plaintiffs' request for attorney's fees is DENIED. This action is REMANDED to the Los Angeles Superior Court at its Santa Monica Courthouse.
II. Factual Background
Plaintiffs allege that in January 2012, Plaintiffs, through their agent Sirena Models, entered into an Agreement with Defendants, through their agent Lauren Austin, to " work a photo shoot and a behindthe-scenes video shoot for Rock Your Hair." Compl., Dkt. 1-1, ¶ 14. This Agreement gave Defendants permission to use Plaintiffs' photographic images on " (a) ROCK YOUR HAIR's website, (b) ROCK YOUR HAIR's banners at tradeshows, and (c) ROCK YOUR HAIR's brochures." Id. ¶ 15.
Plaintiffs contend that " Ms. Austin, on behalf of ROCK YOUR HAIR, indicated the Plaintiffs' images would only be used for a period of 6 months, as ROCK YOUR HAIR planned to shoot additional images." Id. Plaintiffs also entered into an Agreement pursuant to which they granted Defendants permission to use video footage of Plaintiffs for a period not to exceed two years. Id. ¶ 16. Plaintiffs contend that this footage could only be displayed on " YouTube (www.youtube.com) and ROCK YOUR HAIR's Facebook page." Id. Plaintiffs entered a written Agreement with Defendants pursuant to which each would receive $350 in exchange for her participation in the eight-hour photo shoot and her permission to use the images as described. Id. ¶ 17. A copy of this Agreement is attached to Plaintiffs' Complaint. Dkt. 1-1, Ex. B.
Plaintiffs claim that in August 2012, Coyle discovered that Defendants had used her image, without her authorization, in a campaign by the coupon website called Groupon. Id. ¶ 18. When Sirena Models raised this issue with Defendants, they " summarily dismissed the concern and suggested the use Plaintiff COYLE for a bigger marketing campaign and inquired as to her availability." Id. Plaintiffs attached a copy of this email correspondence to their Complaint. Dkt. 1-1, Ex. A. Plaintiffs contend that they later discovered that, without their permission, Defendants used their images and likenesses in other media and manners not authorized under the Agreements. Dkt. 1-1, ¶ ¶ 19-20. Thus, they allege that Defendants " us[ed] their images and likeness on DEFENDANTS' product packaging, point of sale displays, magazine articles, e-commerce stores, electronic worldwide advertising and marketing campaigns, social media websites, and websites of DEFENDANTS' affiliates." Id. ¶ 19. Plaintiffs claim these uses were " for the purpose of advertising or soliciting sales of DEFENDANTS' products and services and in particular their hair care products." Id. ¶ 24.
Plaintiffs contend that " [i]n the images used by DEFENDANTS, the PLAINTIFFS are readily identifiable in that any person seeing the photographs with the naked eye can reasonably determine that the persons depicted are the PLAINTIFFS. The PLAINTIFFS' faces and bodies are shown in each use, and they are clearly lighted and readily distinguishable." Id. ¶ 23. In addition, Plaintiffs contend that the use was such that an objective observer would have believed that Plaintiffs had consented to the advertisements. Id. ¶ ¶ 32, 36. They also allege that they have received no additional compensation for these uses of their images. Id.
A. Legal Standard
Federal courts have limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Therefore, a determination of subject matter jurisdiction must be made before the merits of a case can be addressed. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). If at any time before final judgment the court determines that it is without subject matter jurisdiction, a removed action shall be remanded to the state court in which it was originally filed. 28 U.S.C. § 1447(c).
Federal district courts have original federal question jurisdiction over " all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. In addition, federal courts have exclusive jurisdiction over " any civil action arising under any Act of Congress relating to . . . copyrights." 28 U.S.C. § 1338(a). Under the " 'well-pleaded complaint rule, ' federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). " A defense is not part of a plaintiff's properly pleaded statement of his or her claim." Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). " Although federal preemption is ordinarily a defense, '[o]nce an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state-law claim is considered, from its inception, a federal claim, and therefore arises under federal law.'" Id. at 476.
The party removing an action bears the burden of establishing federal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). " Where doubt regarding the right to removal exists, a case should be remanded to state court, " because " it is well established that the plaintiff is master of her complaint and can plead to avoid federal jurisdiction." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
2. Dismissal Under Rule 12(b)(6)
To withstand a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), a complaint must plead each claim with sufficient specificity to " give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations omitted). Although a complaint need not present detailed factual allegations, it " must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). However, " the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. . . . While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 678-79. Dismissal of a claim is warranted where there is a lack of a cognizable legal theory or ...