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Michael Savely v. Mtv Music Television

July 18, 2011

MICHAEL SAVELY,
PLAINTIFF,
v.
MTV MUSIC TELEVISION, VIACOM D/B/A MTV NETWORKS, JOHN DOES (1-5) (SAID NAMES BEING FICTITIOUS), AND ABC CORP. (SAID ENTITIES BEING FICTITIOUS),
DEFENDANTS.



The opinion of the court was delivered by: Wigenton, District Judge.

NOT FOR PUBLICATION

OPINION

Before the Court is defendant MTV Music Television, Viacom d/b/a MTV Networks, John Does, and ABC Corp.‟s ("Defendants" or "MTV") motion to dismiss the complaint of plaintiff Michael Savely ("Plaintiff" or "Savely") pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Motion to Dismiss").

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Venue is proper and the case was removed to this Court under 28 U.S.C. § 1441(a). This Court, having considered the parties‟ submissions, decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78.

For the reasons stated below, Defendants‟ Motion to Dismiss is GRANTED as to Counts I and II, but DENIED as to Count III.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff is a drummer who performs daily in New York City subways entertaining subway patrons and the public at large. (Compl. ¶¶ 6-8.) Sometime in November 2010, several representatives of Defendants, who were filming for MTV, approached Plaintiff while he was performing his routine on a New York City subway platform. (Id. ¶¶ 12-14.) Defendants‟ representatives asked Plaintiff if they could film him drumming and use the footage in a film that MTV was making. Plaintiff requested to see a contract form, which the representatives provided. After reviewing the contract, Plaintiff decided that he was not comfortable with being filmed and declined the offer. (Id. ¶ 16.) Plaintiff gave the contract back to the representatives and told them that he did not consent to being filmed. (Id. ¶ 17.)

Approximately three weeks later, in December 2010, after two individuals approached Savely and informed him that they saw his performance on MTV, Savely found out that MTV had filmed him playing drums and used the footage in a program about rapper Nicki Minaj*fn1 entitled "Nicki Minaj: My Time Now." (Id. ¶¶ 25, 28.) Prior to one segment in the program, there is a clip showing Savely playing the drums on a New York City subway platform ("Footage"). (Id. ¶ 27.)

Plaintiff asserts that following the release of the program, he received criticism from fans and supporters for his involvement in the project. (Compl. ¶ 34.) Since the airing of the program, the parents of several of Savely‟s students have terminated his services. (See id. ¶ 35.) He also noticed a drop in the number of his clients, and has observed a decrease in his t-shirt sales with his image and art. (Id. ¶¶ 35-36.)

On February 2, 2011, Savely filed a complaint against MTV in New Jersey state court in Hudson County for the following claims of invasion of privacy: (i) appropriation of name, likeness or identity; (ii) publication of private facts; and (iii) false light ("Complaint"). On February 23, 2011, MTV removed the case to federal court in New Jersey pursuant to 28 U.S.C. § 1441. On March 22, 2011, MTV filed the present Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

LEGAL STANDARD

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must "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. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation omitted) (internal quotation marks omitted). A pleading is sufficient if it alleges "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Plaintiff must put forth enough information to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Phillips, 515 F.3d at 231 (alteration in original) (citations omitted) (internal quotation marks omitted).

While a court will accept well-pleaded allegations as true for purposes of the motion, it will not accept unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See Miree v. De Kalb Cnty., Ga., 433 U.S. 25, 27 n.2 (1977); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997) (holding that a court does not need to credit "bald assertions" or "legal conclusions" of a complaint when deciding a motion to dismiss). Further, "[a] court may dismiss a complaint for failure to state a claim, based on a time-bar, where "the time alleged in the statement of a claim shows that ...


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