SAGAN v. APPLE COMPUTER, INC. CV 94-2180 LGB (BRx).
874 F.Supp. 1072 (1994)
Carl SAGAN, Plaintiff, v. APPLE COMPUTER, INC., Defendant.
United States District Court, C.D. California.
June 27, 1994.
Peter Laird, Ralph C. Loeb, Karen Brodkin, Edelstein & Laird, P.C., Los Angeles, CA, for plaintiff Carl Sagan.
BAIRD, District Judge.
Defendant's motion to dismiss, motion for a more definite statement, and motion to strike came on regularly for hearing before this Court on June 27, 1994. After reviewing the materials submitted by the parties, argument of counsel, and all other matters presented to the Court, it is hereby ORDERED that Defendant's motion to dismiss claims six and seven in Plaintiff's complaint is GRANTED, and that Defendant's motions for a more definite statement and to strike are DENIED.
On April 5, 1994, Carl Sagan ("Plaintiff") initiated this action against Apple Computer, Inc. ("Defendant"), asserting the following causes of action:
All of the causes of action arise out of a common nucleus of alleged facts. Plaintiff alleges that Defendant began using the name "Carl Sagan" in connection with a personal computer in 1993. (Complaint, ¶ 8.) After Defendant's use was allegedly publicized in computer periodicals and other publications, Plaintiff's attorneys demanded that Defendant cease use of the name. (Complaint, ¶ 10.) Plaintiff alleges that Defendant informed Plaintiff that it was using Plaintiff's name as a "code name" for a new personal computer, and that Defendant would cease use of the name. (Complaint, ¶ 11.) Plaintiff contends that in January of 1994, Defendant changed the "code name" to "Butt-Head Astronomer," which was published by Defendant and appeared in numerous newspapers and in other media. (Complaint, ¶ 12.)
Currently before the Court are Defendant's motion to dismiss Plaintiff's sixth and seventh claims for failure to state a claim, motion for a more definite statement as to the first, second, third, and fourth claims, and motion to strike the fifth Claim. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
Motion to Dismiss
Federal Rule of Civil Procedure ("Rule") 12(b)(6) allows a party to move to dismiss a claim for failure to allege facts upon which relief can be granted. A Rule 12(b)(6) motion must not be granted "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson,
The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. NL Industries, Inc. v. Kaplan,
Furthermore, unless the Court converts a Rule 12(b)(6) motion into a motion for summary judgment, the court cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). Powe v. Chicago,
Plaintiff's Sixth Claim for Libel
Defendant argues that the statement "Butt-Head Astronomer" cannot be the basis of a libel action because such a statement is an opinion which is nonactionable under the First Amendment. See Gertz v. Robert Welch, Inc.,
The constitutional defense of privileged opinion is applied before analyzing whether the statement in question is actionable under state law. Ault v. Hustler Magazine, Inc.,
The Supreme Court held in Milkovich v. Lorain Journal Co.,
In the Ninth Circuit, courts analyze the following conditions set forth in Milkovich:
Unelko Corp. v. Rooney,
Plaintiff's libel action is based on the allegation that Defendant changed the "code name" on its personal computer from "Carl Sagan" to "Butt-Head Astronomer" after Plaintiff had request that Defendant cease use of Plaintiff's name. (Complaint, ¶¶ 6-12, 45-51.) There can be no question that the use of the figurative term "Butt-Head" negates the impression that Defendant was seriously implying an assertion of fact. It strains reason to conclude that Defendant was attempting to criticize Plaintiff's reputation or competency as an astronomer. One does not seriously attack the expertise of a scientist using the undefined phrase "butt-head." Thus, the figurative language militates against implying an assertion of fact. Unelko, 912 F.2d at 1054.
Furthermore, the tenor of any communication of the information, especially the phrase "Butt-Head Astronomer," would negate the impression that Defendant was implying an assertion of fact. The complaint states that Defendant changed the name of its personal computer from "Carl Sagan" to "Butt-Head Astronomer," and that "[t]his change was published by Apple, and it appeared in numerous newspaper articles and in other media." (Complaint, ¶ 12.) Any reader exposed to such a publication would likely have knowledge of the context in which the language was used. A reader aware of the context would understand that Defendant was clearly attempting to retaliate in a humorous and satirical way against Plaintiff's reaction to Defendant's use of his name. A reasonable reader would further conclude that the use of the term "astronomer" did not imply that Plaintiff was a less than able astronomer, but that the word was a merely a means of identifying Plaintiff. Finally, a reasonable reader would conclude that the phrase "Butt-Head Astronomer" did not imply that Plaintiff was legally wrong in asking Defendant to cease using his name. After
Because a reasonable factfinder could not conclude that "Butt-Head Astronomer" implied that Plaintiff was a less than able astronomer or that Plaintiff was legally wrong in asking Defendant to cease using Plaintiff's name, the only remaining assertion is the bare statement that Plaintiff is a "Butt-Head Astronomer." Clearly this phrase cannot rest on a core of objective evidence. Plaintiff does not suggest any other assertions of objective fact that could be reasonably implied from the phrase.
Based on an analysis of the factors identified in Unelko, the Court has no reason to conclude that the statement made by Defendant implies an assertion of objective fact. Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707. Therefore, the statement is protected under the First Amendment and cannot form the basis of a claim for libel.
Defendant's position is further supported by California law. In light of Milkovich, California courts use a "totality of circumstances" test to evaluate the threshold question of law as to whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion. Moyer v. Amador Valley J. Union High School Dist.,
Plaintiff cites Gill v. Hughes,
Therefore, the statement made by Defendant is protected under California law and cannot form the basis of a claim for libel. Moyer, 225 Cal.App.3d at 724, 725,
Because the statement made by Defendant is not actionable under the First Amendment and California law, the Court hereby ORDERS that Defendant's motion to dismiss Plaintiff's sixth Claim for libel is GRANTED.
Plaintiff's Seventh Claim for Intentional Infliction of Emotional Distress
In Hustler Magazine, Inc. v. Falwell,
Plaintiff cannot deny that he is a public figure. (Complaint, ¶ 6.) Furthermore, as discussed above, "Butt-Head Astronomer" is not, nor does it imply, a statement of fact capable of being proven true or false. Therefore, the statement is protected by the First Amendment and is not actionable under California law.
Accordingly, the Court hereby ORDERS that Defendant's motion to dismiss Plaintiff's Seventh Claim is GRANTED.
Motion for a More Definite Statement
Rule 12(e) provides that "[i]f a pleading ... is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading." A Rule 12(e) motion is proper only where the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted. Famolare, Inc. v. Edison Bros. Stores, Inc.,
Motions for a more definite statement are viewed with disfavor and are rarely granted because of the minimal pleading requirements of the Federal Rules. In re American Int'l Airways, Inc.,
A Rule 12(e) motion is more likely to be granted where the complaint is so general that ambiguity arises in determining the nature of the claim or the parties against whom it is being made. Van Dyke Ford, Inc. v. Ford,
At the foundation of Defendant's argument here is its contention that in order for Plaintiff to recover under the first four causes of action he has alleged, Plaintiff must allege and ultimately prove that Defendant used Plaintiff's name to promote the sale of personal computers in commerce.
Plaintiff's first claim is under the Lanham Act. The Lanham Act states:
15 U.S.C. § 1125(a)(1). Thus, the Lanham Act requires Plaintiff to show that Defendant used Plaintiff's name "in commerce." Defendant argues that Plaintiff's third claim for unfair competition requires the same averment of use in commerce as the Lanham Act. Thus, according to Defendant, the analysis of the Lanham Act claim applies to Plaintiff's unfair competition claim as well.
Plaintiff's second claim is under section 3344 of the California Civil Code, which states:
Id. To plead a claim under § 3344, there must be an allegation of a "direct" connection between the use and the commercial purpose. Brewer v. Hustler Magazine, Inc.,
Finally, Plaintiff's fourth claim for violation of his common law right of publicity requires, among other things, that plaintiff allege "the appropriation of plaintiff's name or likeness to defendant's advantage, commercial or otherwise." White v. Samsung Electronics America, Inc.,
Defendant's argues that Paragraphs 11, 12 and 14 of the complaint introduce ambiguity into the complaint such that Defendant cannot reasonably be required to frame a responsive pleading with regard to Plaintiff's first four claims. The relevant portions of the complaint state:
(Complaint, ¶¶ 11, 12, 14.)
Ostensibly, Paragraph 14 satisfies the "in commerce" requirement of Plaintiff's first four claims. Nonetheless, Defendant argues that notwithstanding Paragraph 14, Paragraph 11 of the complaint acknowledges use of Plaintiff's name as a "code name," and because such a code name was used for internal business purposes before the product was advertised, marketed, or sold, the "in commerce" requirement is not satisfied. Furthermore, Defendant argues that the complaint can be read as asserting either that Defendant used Plaintiff's name internally as a code name or that Defendant used the name in commerce, and that such an ambiguity should be resolved in favor of Defendant by adopting the former interpretation.
Defendant's contention is based on a misreading of Paragraphs 11 and 12. Plaintiff does not assert that Defendant used Plaintiff's name as a "code name," but simply asserts that Defendant advised Plaintiff's attorneys that Defendant was using Plaintiff's name as a "code name" for an Apple PC. (Complaint, ¶ 10; emphasis added.) Therefore, the "code name" allegations found in Paragraphs 11 and 12 are not allegations of Plaintiff's belief as to the true state of affairs, but are allegations as to what Plaintiff was told by Defendant.
Furthermore, even if Paragraphs 11 and 12 can be read as contradicting Paragraph 14, such a contradiction would not make the complaint so vague and ambiguous that Defendant cannot be reasonably required to frame a responsive pleading. Furthermore, Defendant's contention that any ambiguity between Paragraphs 11 and 12, on the one hand, and Paragraph 14, on the other, should be resolved in favor of Defendant is antithetical
Therefore, the Court hereby ORDERS that Defendant's motion for a more definite statement is DENIED.
Motion to Strike
Rule 12(f) provides that a court may order stricken from any pleading any "redundant, immaterial, impertinent, or scandalous matter." "`Redundant' matter consists of allegations that constitute a needless repetition of other averments." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 704 (1990).
The motion may be denied "if the redundancy consists only of alleging specifically that which has been alleged generally in other paragraphs, or if there is any doubt whether pleaded material is redundant and some party may be prejudiced by striking it." Wright & Miller at 706. Moreover, if the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied and the sufficiency of the allegations left for adjudication on the merits. Wright & Miller at 700; see also United States v. 729.773 Acres of Land, Etc.,
Furthermore, a court should keep in mind that the function of a Rule 12(f) motion to strike is "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Fantasy, Inc. v. Fogerty,
Defendant argues that under California law, the right of publicity (the appropriation, for the defendant's commercial advantage, of plaintiff's name or likeness) is the same as the right of privacy. As a result, Plaintiff may assert different theories of relief, but they must be maintained under one claim.
In Lugosi v. Universal Pictures,
Later, in Dora v. Frontline Video, Inc.,
Dora, 15 Cal.App.4th at 541-42,
Although the fifth cause of action makes allegations which are redundant with allegations made in the fourth cause of action, such a redundancy does not act to prejudice Defendant in any way. Furthermore, the fifth cause of action is not redundant to the extent that it requests punitive damages. Therefore, rather than striking the fifth cause of action, the Court will simply deem that the fourth and fifth causes of action state a single cause of action for common law misappropriation.
Therefore, the Court hereby ORDERS that Defendant's motion to strike is DENIED, and that Plaintiff's fourth and fifth causes of action are consolidated into a single cause of action for common law misappropriation.
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