Summary
dismissing plaintiff's claim as barred by the statute of limitations
Summary of this case from Duncan v. Universal Music Grp. Inc.Opinion
99 Civ. 8854 (HB)
April 18, 2000
OPINION ORDER
The plaintiffs' complaint sets forth four causes of action: (1) breach of contract for failure to obtain the permission required of the plaintiffs to utilize their recording; (2) breach of a collective bargaining agreement for failure to contract with plaintiffs for the use of their voices; (3) violation of 15 U.S.C. § 1125 (a)(1) (the Lanham Act); and (4) violation of plaintiffs' common law right of publicity. Defendants move to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), plaintiffs' second and fourth causes of action. For the reasons discussed below, defendants' motion is GRANTED.
I. BACKGROUND
The well-pleaded facts of this case, taken as true on this motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), are as follows:
Plaintiffs Nelson and Stokes and the deceased Dorste and Ganser were at one time members of a professional singing group known as the Shangri-Las. Defendant Working Class, Inc. is an advertising agency that produced a television commercial for its client LPL Financial Services. The complaint alleges that in July 1997, defendants entered into a Screen Actor's Guild ("SAG") contract which required the defendants to bargain with the principal performer of a sound recording recorded under the jurisdiction of the American Federation of Television and Radio Artists ("AFTRA"). Plaintiffs claim that they recorded "Leader of the Pack" under the jurisdiction of AFTRA in 1964 and that defendants did not obtain their permission to use their recording, "Leader of the Pack," but went ahead and incorporated the song in a multi-million dollar television advertising campaign. The commercial was broadcast in the United States between September 1997 and April 1998.
II. DISCUSSION
A. Plaintiffs' Second Cause of Action
Plaintiffs argue that the SAG agreement is both a collective bargaining agreement and a contract and that as such, they are "entitled to plead multiple causes of action and to ask this Court for remedies flowing from each, if the facts permit." (Peltz Aff. at ¶ 15). Plaintiffs claim the two causes of action are "not mutually exclusive since a breach of the contract is evidence of a violation of a Collection [sic] Bargaining Agreement." (Peltz Aff. at ¶ 15). They also state that defendants "breached a contract (Section 28 of the SAG Agreement) which also makes it a violation of the Collective Bargaining Agreement." (Peltz Aff. at ¶ 17).
Plaintiffs repeat the allegations of their first cause of action in their second cause of action and add that defendants have "violated an essential term of the SAG Contract and collective bargaining agreement." (Compl. ¶ 21). The main difference between the two claims seems to be a claim for punitive damages available on the second cause of action that is not available on the first. (Compl. ¶ 22). Plaintiffs further claim that their second cause of action asserts a violation of a collective bargaining agreement under the Labor Management Relations Act ("LMRA"), which "provides this court with subject matter jurisdiction and may entitle plaintiffs to an award for punitive damages." (Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion to Dismiss ("P1. Mem.") at 5).
Under Section 301 of the LMRA [ 29 U.S.C. § 185 (a)], however, common law breach of contract claims are pre-empted. The LMRA serves as the exclusive mechanism for bringing suit for alleged violations of collective bargaining agreements. "When resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract that claim must either be treated as a section 301 claim or dismissed as preempted by federal labor-contract law." Allis Corp. v. Leuck, 471 U.S. 202, 220 (1985). Nonetheless, plaintiffs attempt to distinguish the first and second causes of actions by stating that "to the extent that this court may find that this action is not against an employer nor union and thereby not subject to the LMRA, the breach of contract action is admittedly viable." (P1. Mem. at 6). However, plaintiffs have not stated accurately the test for whether LMRA preempts state law claims. The Supreme Court has stated that to effectuate the goals of the LMRA, pre-emption should be applied to "state laws purporting to determine questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement" and to tort suits which allege "breaches of duties assumed in collective bargaining agreements." Lividas v. Bradshaw, 512 U.S. 107, 123 (1994) (internal citations omitted). It is evident from the face of the complaint that the plaintiffs' state law claim is substantially dependent upon an analysis of the terms of an agreement made between the parties in a labor contract. The plaintiffs' claims implicate the collective bargaining agreement and the alleged breach of that agreement, and may require interpretation of its terms. Finding plaintiffs' claims substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, the Court dismisses the plaintiffs' second cause of action and will consider the first cause of action as one brought under the LMRA.
B. The Plaintiffs' Fourth Cause of Action
Plaintiffs' fourth cause of action is based on "the common law right of publicity in each of the states of the United States in which the `Leader of the Pack' TV commercial was broadcast." (P1. Mem. at 6). Plaintiffs claim that they "have a right to assert a claim based on those violations of state laws other than New York or wherever the common law right of publicity for commercial exploitation is allowed and asserted." (P1. Mem. at 7).
"In a federal question action where a federal court is exercising supplemental jurisdiction over state claims, that federal court must apply the choice of law rules of the forum state. Under New York choice of law rules, the substantive law of a plaintiffs domicile generally applies to a right of publicity claim." Rostropovich v. Koch Int'l Corp., 1995 WL 104123 at *8 (S.D.N Y March 7, 1995) (citing Rogers v. Grimaldi, 875 F.2d 994, 1002 (2d Cir. 1989)). Here, it is uncontested that plaintiffs' domicile is New York. (Compl. ¶ 2). As such, New York law would apply. Although plaintiffs argue that they do not assert their claim "under the Civil Rights Law of the State of New York, especially Sections 50 and 51" (P1. Mem. at 7), it is clear that under New York choice of law rules if there is a claim at all it must be brought only under these statutes. "Since the `right of publicity' is encompassed under the Civil Rights Law as an aspect of the right of privacy, which . . . is exclusively statutory in this state, the plaintiff cannot claim an independent common-law right of publicity." Stephano v. News Group Publications, 64 N.Y.2d 174 (1984).
In addition, as New York is a state that has adopted the single publication rule, plaintiffs' claims under California law and the laws of other states cannot be asserted. In Rostropovich, plaintiff alleged violations of California statutory and common law regarding the right of publicity in addition to his right of publicity claims under New York law. The court agreed with the defendant that the California claims should be dismissed. Citing the Restatement (Second) of Conflicts of Law, § 153, comment c, the Rostropovich court noted that when a party invoked the right of publicity under a variety of state statutes, that party could only recover under one such statute. Rostropovich v. Koch Int'l Corp., 1995 WL 104123 at *8. Under the single publication rule, held applicable to claims asserting violations under sections 50 and 51 of the New York Civil Rights Law in Khaury v. Playboy Publications Inc., 430 F. Supp. 1342 (S.D.N.Y. 1977), only one cause of action can be maintained and the damages suffered in all jurisdictions can be recovered in the one action. The single publication rule "was adopted in recognition of the vast multiplicity of suits which could arise from mass publications which transcend a variety of medias and state lines, and the attendant problems of choice of law, indefinite liability, and endless tolling of the statute of limitations." Khaury, 430 F. Supp. at 1345. Plaintiffs' argument that they have a claim under the law of every state in which the commercial aired is contrary to both the choice of law principles and the single publication rule.
Claims alleging violation of the New York's right of privacy law must be brought within one year of the initial publication. N.Y.C.P.L.R. § 215(3). This action was filed on August 12, 1999. Defendants first aired the offending commercial in September of 1997. Taken together, plaintiffs's fourth cause of action must be dismissed.
III. CONCLUSION
For the reasons stated above, defendants' motion to dismiss plaintiffs' second and fourth causes of action is GRANTED.