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Cuviello v. Feld Entertainment, Inc.

United States District Court, N.D. California, San Jose Division

January 12, 2015

FELD ENTERTAINMENT, INC., et al., Defendants.


LUCY H. KOH, District Judge.

Defendant Geoffrey Taylor ("Taylor") moves to dismiss the fifth cause of action- eavesdropping, in violation of section 632(a) of the California Penal Code-in Plaintiff Joseph Cuviello's ("Plaintiff") Third Amended Complaint ("TAC") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 62 ("Mot."). Alternatively, Taylor asks the Court to dismiss him as a defendant in this lawsuit pursuant to Rule 21 because Taylor, allegedly a nondiverse and dispensable party, was improperly joined in this litigation. Id. Defendants Feld Entertainment, Inc. ("FEI") and Lorenzo Del Moral ("Del Moral") (collectively, with Taylor, "Defendants"), have joined Taylor's motions. ECF No. 67.

The Court finds the matter suitable for decision without oral argument under Civil Local Rule 7-1(b) and hereby VACATES the hearing set for January 15, 2015, at 1:30 p.m. and CONTINUES the case management conference to March 12, 2015, at 1:30 p.m. Having considered the parties' arguments, the relevant law, and the record in this case, the Court hereby DENIES Taylor's Motion to Dismiss, and GRANTS Taylor's Motion for Misjoinder.


A. Factual Allegations

Plaintiff is a member of Humanity Through Education ("HTE"), a San Francisco Bay Area grassroots group dedicated to the humane treatment of animals and educating the public about the alleged abuse and mistreatment of animals in circuses, including the Ringling Bros. and Barnum & Bailey Circus (the "Circus"), which FEI owns and operates. TAC ¶¶ 7, 12. Plaintiff holds signs and banners and offers to the public informational leaflets about the condition and treatment of animals kept by the Circus. Id. ¶ 12. Plaintiff also videotapes the treatment of animals used by the Circus to educate the public and provide the news media with information about the Circus's alleged abuse and mistreatment of animals. Id. Plaintiff has been organizing demonstrations against circuses and leafleting their patrons since 1988; he has been videotaping their treatment of animals since 1989. Id. ¶ 18. Plaintiff, along with other HTE members, has videotaped the Circus's treatment of animals in numerous California cities and other cities across the country. Id. ¶¶ 19-20.

The Circus performs annually in the San Francisco Bay Area in August and September. TAC ¶ 21. Two or three days before the first performance, the Circus's employees bring the animals via railroad to the city in which they are performing, unload the animals from the train, and walk them down the public streets to the arenas where the animals will perform (the "animal walk"). Id. ¶ 22. After the last scheduled performance, the Circus's employees walk the animals back to the train. Id. In between performances, the Circus keeps the animals in a compound when the animals are not performing. Id. ¶ 23. Each year, Plaintiff offers informational leaflets to patrons of every Circus performance in the Bay Area. Id. ¶ 24. Plaintiff also videotapes (1) the treatment and living conditions of animals used by the Circus before, during, and after shows; and (2) the treatment and living conditions of the Circus's animals while on the train, being loaded and unloaded from the train, and being walked to and from the arenas. Id.

Plaintiff alleges that Defendants have a "policy and practice... to intentionally interfere with Plaintiff's free speech rights for the purpose of interfering with and chilling Plaintiff in the exercise of his constitutionally-protected rights." TAC ¶ 27 (internal quotation marks omitted). In particular, Plaintiff asserts that over the past several years Defendants have harassed him and interfered with his ability to videotape the animals. Id. ¶¶ 26, 28. Defendants' alleged misconduct includes: (1) using ropes during the animal walks to harass Plaintiff and interfere with his videotaping; (2) shining lights into Plaintiff's cameras; (3) spraying Plaintiff with fire hoses; and (4) other physical and verbal assaults on Plaintiff while he is videotaping. Id. ¶¶ 28-54. Defendants' misconduct, Plaintiff claims, spans many incidents over the past several years. Id.

As relevant here, Plaintiff alleges that on August 19, 2012, he was at the arena in San Jose, California, to demonstrate against and videotape the Circus's treatment of animals. TAC ¶ 45. Plaintiff claims that, in between demonstrations, he was standing on a public sidewalk along Autumn Street and filming the Circus's treatment of animals over the loading dock wall at the arena's rear. Id. According to Plaintiff, FEI had hired professional videographers to follow and record the activities of Plaintiff and his fellow animal rights activists at the San Jose event. Id. ¶ 47. Typically, Plaintiff says, FEI's videographers would stand on the opposite side of the street, maintaining a sufficient distance to allow Plaintiff to engage in private conversations should he so choose. Id. At one point, however, Plaintiff wanted to have a private conversation with a fellow activist, Mark Ennis ("Ennis"). Id. ¶ 48. While standing on the public sidewalk, Plaintiff alleges that he looked around to ensure that no one was within earshot before leaning in to speak privately with Ennis. Id. Sensing someone was near, Plaintiff claims he turned around to find one of FEI's videographers standing right behind him and recording his private conversation with Ennis without Plaintiff's permission. Id. After confronting the man, Plaintiff says he asked the videographer his name. Id. According to Plaintiff, the videographer identified himself as Jake Woolbrach ("Woolbrach"), but Plaintiff later came to believe that the man was actually Taylor. Id .; see also ECF No. 46 (granting the parties' stipulation to substitute Taylor's name for Woolbrach's in the TAC).

About ten minutes later, Plaintiff allegedly approached a nearby San Jose police officer, asking the lieutenant to enforce section 632(a) of the California Penal Code, the state's eavesdropping law, against Taylor and the rest of FEI's videographers. TAC ¶ 49. After Plaintiff read section 632(a) to the policeman, the officer, according to Plaintiff, said he would instruct FEI's videographers to maintain a distance of at least fifteen feet from the animal rights activists. Id. Plaintiff indicated that this remedy was satisfactory. Id.

B. Procedural History

On July 8, 2013, Plaintiff, appearing pro se, filed his initial Complaint in federal court, naming as defendants FEI, Del Moral, and Woolbrach, as well as Mike Stuart ("Stuart") and David Bailey ("Bailey"). ECF No. 1 ("Compl."). Diversity of citizenship under 28 U.S.C. § 1332 was the sole basis for federal subject matter jurisdiction. Id. ¶ 3. In his initial Complaint, Plaintiff asserted eight causes of action: (1) violation of Article I, Section 2(a) of the California Constitution; (2) assault and battery; (3) violation of the Ralph Act, Cal. Civ. Code § 51.7 (right to be free from violence against property or person); (4) violation of the Bane Act, Cal. Civ. Code § 52.1 (interference with rights); (5) negligent supervision; (6) eavesdropping under section 632(a) of the California Penal Code; (7) violation of Oakland City Ordinances pursuant to section 36900 of the California Government Code (the "Oakland Ordinances"); and (8) injunction. Id. ¶¶ 52-78. On October 1, 2013, prior to any defendant filing a response to Plaintiff's initial Complaint, Plaintiff filed his First Amended Complaint ("FAC"), which asserted the same eight causes of action but dropped defendants Stuart and Bailey. ECF No. 9.

On October 18, 2013, the instant case was related to Campbell v. Feld Entertainment, Inc., et al., No. 12-04233, and Ennis v. Feld Entertainment, Inc. et al., No. 13-00233. ECF No. 12. As a result, the case was reassigned to this Court on October 24, 2013.

On October 31, 2013, Defendants filed a Motion to Dismiss the FAC. ECF No. 13. Defendants moved to dismiss only six of the eight causes of action asserted in the FAC: (1) violation of Article I, Section 2(a) of the California Constitution; (2) assault and battery; (3) negligent supervision; (4) eavesdropping; (5) violation of the Oakland Ordinances; and (6) injunction. Id. at 1-2. Plaintiff opposed ...

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