The opinion of the court was delivered by: Wolfson, United States District Judge
In this putative class action lawsuit, Plaintiff Ryan Hart filed suit on behalf of himself and all others similarly situated against Defendant Electronic Arts, Inc. ("Defendant"), alleging, inter alia , that Defendant appropriated Plaintiff's likeness and used his likeness for commercial purposes in connection with Defendant's NCAA Football video games. The suit was initially filed in the Superior Court of New Jersey, Law Division, Somerset County, and then removed by Defendant to this Court. Defendant now moves to dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that each count of the Amended Complaint- invasion of privacy-right of publicity (appropriation of commercial likeness),*fn1 New Jersey Consumer Fraud Act ("NJCFA"), unjust enrichment, and conspiracy-fails to state a claim. For the following reasons, Defendant's motion is granted. Plaintiff's right of publicity claim is dismissed without prejudice and Plaintiff is granted leave to amend that claim. His remaining claims are dismissed with prejudice.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed the original complaint in this action in the Superior Court of New Jersey, Law Division, Somerset County, on June 15, 2009. In that complaint, Plaintiff alleged that, without his consent, Defendant advertised and sold products bearing his identity and likeness from the years in which he played as a quarterback on the Rutgers University football team.*fn2 Compl. at ¶¶ 1, 6. Shortly thereafter, on July 28, 2009, Defendant moved for a more definite statement. In that motion, Defendant argued that the Complaint failed to identify which games depicted Plaintiff's likeness and "what attributes . . . of plaintiff[ ] constitute[s his] likeness ...." Notice of Removal, Exh. B, Def. Mot. More Definite Statement at 2. That motion was heard in state court on September 11, 2009. At the hearing, the parties placed a settlement, with respect to that motion only, on the record. Id., Rosen Ltr. dated September 17, 2009 at 1. Per their agreement, Plaintiff was to file an amended complaint that included "the names of the video game(s) and the version/year of those game(s) upon which plaintiff[ is] seeking relief." Id. Thereafter, Defendant withdrew its motion. On October 24, 2009, Plaintiff filed an Amended Complaint. Defendant then removed the suit to this Court, on November 24, 2009, and this motion to dismiss followed.
In his Amended Complaint, Plaintiff asserts right of publicity, NJCFA, unjust enrichment, and conspiracy claims based on Defendant's use of Plaintiff's image in its NCAA Football video game series for the years of 2004, 2005 and 2009. Am. Compl. at ¶ 22. In connection with the 2009 game, he alleges that a photograph of him appears in a photo montage of actual college players. He asserts two invasion of privacy claims, one titled "Appropriation of Likeness" and one titled "Appropriation of Likeness for Commercial Purposes." See id. at pp. 5-6. In connection with these claims, he asserts that Defendant "incorporate[ed] Plaintiff's identify [sic] and likeness into its video games." Id. at ¶ 20; see also id. at ¶ 25 ("Defendant . . . invaded Plaintiff's right to privacy by appropriating Plaintiff's likeness by including him in its video games."). Plaintiff clarifies, in his opposition papers, that these two claims should be construed as one claim instead. Pl. Opp. at 13.
In connection with his NJCFA claim, Plaintiff alleges that Defendant violated the NJCFA's prohibition against unlawful, unfair, or fraudulent acts by: (a) failing to disclose to its customers that Plaintiff has not consented to the use of his image, (b) appropriating Plaintiff's likeness in order to enhance its sales; and (c) engaging in deceptive practices by "misleading the public that Plaintiff endorsed the use of his likeness." Id. at ¶ 34. His unjust enrichment claim alleges that Defendant has been unjustly enriched by Defendant's use of his likeness, id. at ¶ 39-42, and his conspiracy claim alleges that Defendant and JOHN DOES 1-50 conspired to utilize Plaintiff's image in "disregard of the rights of Plaintiff." Id. at ¶ 45.
The Amended Complaint does not address what attributes of Plaintiff appear in the NCAA Football games; however, in opposition to this motion, Plaintiff submitted a Declaration in which he avers additional facts. Specifically, Plaintiff's Declaration avers that NCAA Football depicts a "virtual" player in screen shots that replicate photos taken of Plaintiff while playing as a Rutgers University quarterback from 2002 through 2005. Pl. Decl. at ¶ 12, Exh. A-E. Plaintiff, further, points to the NCAA Football 2006 game, which "lists the Rutgers University 'virtual' QB as hailing from Florida," and avers that he was "the only Rutgers "QB during this time from Florida." Id. at 14. Regarding physical attributes, Plaintiff asserts that:
a. I was listed as standing six (6) feet and two (2) inches tall, the same height as the "virtual" Rutgers QB in the NCAA Football game versions in question;
b. I weighed one hundred ninety-seven pounds (197 lbs.), the same weight as the "virtual" Rutgers QB in the NCAA Football game versions in question;
c. My Jersey number was 13, the same as the "virtual" Rutgers QB in the NCAA Football game versions in question;
d. I wore a left wrist band, the same as the "virtual" Rutgers QB in the NCAA Football game versions in question; and
e. I wore a helmet visor, the same as the "virtual" Rutgers QB in the NCAA Football game versions in question.
Id. at ¶ 15. In addition, Plaintiff avers, the NCAA Football 2006 game used the same "speed and agility rating," "passing accuracy," and "arm strength in the video [g]ame compared to actual footage." Id. at ¶ 17. Similarly, the game "shows my contribution to the team and importance to total team success as identical to the actual season," he asserts. Id. at ¶ 18. Finally, Plaintiff avers in his declaration that actual video footage of him was "used in the promotion for Defendant EA's NCAA game wherein I was throwing a pass [in a] Rutgers' bowl game against Arizona State." Id. at ¶ 19.
In his opposition brief, Plaintiff asserts additional facts not found in his declaration. Specifically, he asserts that, while playing at Rutgers, he agreed to be bound by the NCAA rules, regulations and bylaws, including NCAA "Bylaw 12.5 [which] prohibits the commercial licensing of the 'name, picture or likeness' of a student athlete while he/she attends an NCAA-member institution." Pl. Opp. at 1-2. Further, he states, that "[d]uring [his] college career in 2002, 2003, 2004 and 2005, [he] had forgone commercial opportunities in order to maintain his eligibility as an NCAA student athlete at Rutgers University." Id. at 2. In terms of the role of his likeness in the game, Plaintiff asserts that the game "allows the public to simulate the college football playing experience by stepping into the shoes of Rutgers' QB Ryan Hart, and other college football players, where fans can mimic Plaintiff's style and movements and play against Plaintiff's actual opponents." Id. at 3.
Defendants filed the instant motion on January 12, 2010, seeking to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). As noted, Plaintiff has opposed the motion and filed a Declaration in support thereof. Having reviewed all the parties' motion papers, the motion is now ripe for decision.
When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 561 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 555. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to ...