MetLife Investors USA Insurance v. Pratt Ex Rel. Estate of Pratt

10-4093
MetLife Investors USA Ins. Co. v. Pratt
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19th day of September, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROBERT A. KATZMANN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 METLIFE INVESTORS USA INSURANCE
14 COMPANY,
15
16 Plaintiff-Counter-Defendant-
17 Appellee,
18
19 DANIEL ZEIDMAN, as Trustee of the
20 Esther Zeidman Trust,
21
22 Defendant-Cross Claimant-
23 Cross Defendant-Appellee,
24
25 -v.- 10-4093
26
1
1 LAVELL S. PRATT, as Personal
2 Representative of the Estate of Sherry
3 Pratt,
4
5 Defendant-Cross Defendant-
6 Cross Claimant-Counter-
7 Claimant-Appellant.
8
9
10 - - - - - - - - - - - - - - - - - - - -X
11
12 FOR APPELLANT: Peter Campbell King
13 Cline, King & King, P.C.
14 Columbus, IN
15
16
17
18 FOR APPELLEE METLIFE INVESTORS USA INSURANCE COMPANY:
19
20 Christopher Gilbert
21 The Unger Law Group, P.L.
22 Orlando, FL
23
24
25
26 FOR APPELLEE DANIEL ZEIDMAN:
27
28 Joseph P. LaSala
29 McElroy, Deutsch, Mulvaney & Carpenter,
30 LLP
31 Morristown, NJ
32
33
34 Appeal from a judgment of the United States District
35 Court for the Eastern District of New York (Spatt, J.).
36
37 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
38 AND DECREED that the district court’s judgment is AFFIRMED.
39
40 Lavell S. Pratt, as Personal Representative of the
41 Estate of Sherry Pratt, appeals the district court’s
42 judgment dismissing his cross claim and counter claim
43 alleging that MetLife Investors USA Insurance Company and
44 Daniel Zeidman, as Trustee of the Esther Zeidman Trust,
2
1 violated Illinois statutory and common law, including the
2 Illinois Right of Publicity Act (“IRPA”). We assume the
3 parties’ familiarity with the underlying facts, the
4 procedural history, and the issues presented for review.
5
6 We review de novo a district court’s dismissal under
7 Federal Rule of Civil Procedure 12(b)(6), accepting all
8 factual allegations as true and drawing all reasonable
9 inferences in favor of the pleader. See ECA & Local 134
10 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553
11 F.3d 187, 196 (2d Cir. 2009). “To survive a motion to
12 dismiss, a complaint must plead enough facts to state a
13 claim to relief that is plausible on its face.” Id.
14 (internal quotation marks omitted). “[A]lthough ‘a court
15 must accept as true all of the allegations contained in a
16 complaint,’ that ‘tenet’ ‘is inapplicable to legal
17 conclusions,’ and ‘[t]hreadbare recitals of the elements of
18 a cause of action, supported by mere conclusory statements,
19 do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
20 2009) (second alteration in original) (quoting Ashcroft v.
21 Iqbal, 129 S. Ct. 1937, 1949 (2009)).
22
23 [1] Appellant first argues that appellees’ use of Sherry
24 Pratt’s identity as the measuring life under a since-
25 rescinded annuity contract without her consent violated Ms.
26 Pratt’s right of publicity under the IRPA. The IRPA
27 provides that “A person may not use an individual’s identity
28 for commercial purposes during the individual’s lifetime
29 without having obtained previous written consent . . . .”
30 765 Ill. Comp. Stat. 1075/30(a). The statute defines
31 “commercial purpose” to mean “the public use or holding out
32 of an individual’s identity (i) on or in connection with the
33 offering for sale or sale of a product, merchandise, goods,
34 or services; (ii) for purposes of advertising or promoting
35 products, merchandise, goods, or services; or (iii) for the
36 purpose of fundraising.” Id. 1075/5. The statute does not
37 define “public use.” The district court consulted Webster’s
38 Third New International Dictionary, which defines “public”
39 to mean “accessible to or shared by all members of the
40 community,” or “exposed to general view.” MetLife Investors
41 USA Ins. Co. v. Zeidman, 734 F. Supp. 2d 304, 311 (E.D.N.Y.
42 2010). Under Illinois law, “[w]hen [a] statute contains
43 undefined terms, it is entirely appropriate to employ a
44 dictionary to ascertain the plain and ordinary meaning of
3
1 those terms.” People v. Davison, 906 N.E.2d 545, 551 (Ill.
2 2009). Appellant has failed to allege that appellees’ use
3 of Ms. Pratt’s identity in connection with a private annuity
4 contract was “public” in the ordinary sense of the word, and
5 therefore has not stated a plausible claim for relief under
6 the IRPA.
7
8 [2] Appellant has also failed to state a claim for common
9 law appropriation. The Appellate Court of Illinois has held
10 that the IRPA superseded the common law tort of
11 appropriation. Blair v. Nev. Landing P’ship, RBG, LP, 859
12 N.E.2d 1188, 1192 (Ill. App. Ct. 2006) (“After December 31,
13 1998, the common-law tort of appropriation of one’s likeness
14 ceased to exist. The Right of Publicity Act, effective
15 January 1, 1999, completely replaced the common-law tort of
16 appropriation of likeness . . . .”). “This Court is bound
17 to apply the law as interpreted by a state’s intermediate
18 appellate courts unless there is persuasive evidence that
19 the state’s highest court would reach a different
20 conclusion.” V.S. v. Muhammad, 595 F.3d 426, 432 (2d Cir.
21 2010). Appellant has provided no such evidence, and cites
22 no post-IRPA Illinois case recognizing the continuing
23 vitality of a separate appropriation tort distinct from the
24 right to publicity under the IRPA that would cover the
25 conduct alleged in appellant’s cross claim and counter
26 claim. Appellant has therefore failed to state a claim for
27 relief under Illinois common law.
28
29 For the foregoing reasons, the judgment of the district
30 court is hereby AFFIRMED.
31
32
33
34 FOR THE COURT:
35 CATHERINE O’HAGAN WOLFE, CLERK
36
4