MESKILL, Circuit Judge:
Melanie Geisler appeals from a judgment dismissing the diversity action she had commenced against author Orlando Petrocelli and his publisher, Pinnacle Books, Inc., for libel and violation of certain rights of privacy guaranteed under New York State statutes and the common law. The district court had so ruled pursuant to appellees' motions made under Rule 12(b)(6), Fed.R.Civ.P., on the ground that her complaint did not adequately aver that the offending material was "of and concerning" her, an essential element of each of her causes of action under applicable New York law, Julian v. American Business Consultants, Inc., 2 N.Y.2d 1, 17, 155 N.Y.S.2d 1, 16, 137 N.E.2d 1, 11 (1956) (libel); Swacker v. Wright, 154 Misc. 822, 277 N.Y.S. 296 (Sup.Ct. Nassau Co. 1935) (invasion of privacy). Without speculating whether plaintiff will, after responsive pleadings and appropriate discovery, develop adequate evidence to allow the case to be submitted to the trier of fact, or even to withstand a motion for summary judgment, we reverse and remand. The dismissal of this action at the pleading stage improperly denied appellant the opportunity to adduce a full record
By all accounts, appellant Melanie Geisler is a petite and attractive young woman, noticeably unconventional in neither conduct nor appearance. For a time between 1976 and 1977, she worked as a publicity assistant for Mason Charter, Inc., a small publishing company which during the relevant period employed approximately twenty people, including, for a brief stint, the appellee author. Owing simply to the limited size of Mason Charter's operation, it is conceded that Petrocelli and Ms. Geisler were acquainted, apparently on a casual business basis.
Subsequent to his departure from that employment, Petrocelli in 1976 penned a potboiler entitled "Match Set" concerning the odyssey of a female transsexual athlete through the allegedly corrupt and corrupting world of the women's professional tennis circuit. Though possibly inspired by the recent and non-fictional advent on the scene of a female transsexual tennis player, the book purports to be a work of fiction, and on its frontispiece it sets forth the standard disclaimer of intentional resemblance between its characters or episodes and real persons or actual incidents. Its plot centers upon the attempt by certain unscrupulous persons to manipulate the outcome of a tournament by sabotaging the efforts of certain favored players, thereby making possible an upset victory for the protagonist, whom they alone know to be transsexual.
This central character bears appellant's precise name, "Melanie Geisler" and is described as young, attractive and honey-blonde, "her body ... firm and compact, though heavier than she would like." Although she is initially portrayed as innocent and naive, during the course of the narrative she is induced to participate in the tennis fraud, and perhaps more to the author's point, lured into untoward sexual conduct which is graphically portrayed.
While appellant is purportedly an upstanding individual and the mother of two, her complaint avers that "although advertised and promoted by defendants as a work of fiction, in truth and in fact the book refers to plaintiff by name and physical description ... and ... plaintiff [is] a leading character in the book."
Fetler v. Houghton Mifflin Co., 364 F.2d 650, 651 (2d Cir.1966), quoting Julian v. American Business Consultants, Inc., supra, 2 N.Y.2d at 17, 155 N.Y.S.2d at 15, 137 N.E.2d at 11. See also Hicks v. Casablanca Records, 464 F.Supp. 426, 430-31 (S.D.N.Y.1978); Ali v. Playgirl, Inc., 447 F.Supp. 723, 726-27 (S.D.N.Y.1978); Negri v. Schering Corp., 333 F.Supp. 101, 103-05 (S.D.N.Y.1971); and see Bindrim v. Mitchell, 92 Cal.App.3d 61, 75-76, 155 Cal.Rptr. 29, 37-38 (2d App.Dist.), cert. denied, ___ U.S. ___, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979).
The Court in Fetler went on to remark that this burden "is not a light one," supra, 364 F.2d at 653. That observation signifies that plaintiff must demonstrate that third parties apprehend the similarity between the real person and her literary cognate as something more than amusing coincidence or even conscious parallelism on a superficial plane. Rather, it is required that the reasonable reader must rationally suspect that the protagonist is in fact the plaintiff, notwithstanding the author's and publisher's assurances that the work is fictional. This points up the disturbing irony inherent in the scheme: the more virtuous the victim of the libel, the less likely it will be that she will be able to establish this essential confusion in the mind of the third party. Thus, the more deserving the plaintiff of recompense for the tarnishing of a spotless reputation, the less likely will be any actual recovery. Such a seeming contradiction is best resolved by the trier of fact since adjudication of the issue as a matter of law will seldom satisfy the expectation that legal holdings be consistent and logical.
However this may be, the district judge found on the basis of the pleading that no reasonable reader could mistake Ms. Geisler for her fictional namesake, and on this ground dismissed all three causes of action set forth in the complaint.
We hold that appellant's averments are sufficient to withstand the motion to dismiss. As has been frequently reiterated, the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof. As formulated in Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957), a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. See generally 2A Moore's Federal Practice ¶ 12.08 (2d ed. 1979).
Such a bleak prognosis cannot be made for appellant's claims solely upon the averments of the complaint. It is sufficient for dismissal purposes that appellant has
Furthermore, it has long been the rule that extrinsic evidence is admissible to buttress the claim that the defamation is "of and concerning" the plaintiff and the fact that resort to such evidence may be necessary does not defeat the claim. Brayton v. Crowell-Collier Publishing Co., 205 F.2d 644, 645 (2d Cir.1953).
Accordingly, we need not determine at this early juncture whether the "of and concerning" requirement of each of appellant's causes of action can be sustained on the basis of the pleaded facts alone. We do note that the issue is generally left for resolution by the trier of fact, Fetler v. Houghton-Mifflin Co., supra, 364 F.2d at 653; Brayton v. Crowell-Collier Publishing Co., supra, 205 F.2d at 645; Bridgewood v. Newspaper PM, Inc., 276 App.Div. 858, 93 N.Y.S.2d 613 (2d Dept. 1949); see also, United Medical Laboratories, Inc. v. CBS, 404 F.2d 706, 708 (9th Cir.1968), cert. denied, 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454 (1969); Rosenbloom v. Metromedia, Inc., 289 F.Supp. 737 (E.D.Pa.1968), rev'd on other grounds, 415 F.2d 892 (3d Cir.1969), aff'd, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); especially where plaintiff has been personally designated, see, e. g., Middlebrooks v. Curtis Publishing Co., 413 F.2d 141 (4th Cir.1969) (affirming lower court's finding after trial that reasonable reader could not have mistaken fictional character with distinctive name "Esco" with real-life counterpart.) In any event, appellant is entitled to develop and present a full evidentiary record on the issue.
We do not know whether additional circumstances exist which would cause reasonable readers to confuse the real and the fictional Melanie Geisler. Appellant has asserted that they do, although such evidence has not been particularized. Perhaps appellant's circle of friends corresponds in some degree to characters in the book, or perhaps she was once an athletic prodigy. Counsel may also produce affidavits from individuals stating that upon reading or hearing of "Match Set" they believed the protagonist to be derived from appellant.
Had such an additional submission been made by appellant pursuant to the dismissal motions, the trial judge could have construed the application as a motion for summary judgment, Rule 12(b), Fed.R.Civ.P., and evaluated the sufficiency of the evidence according to procedures prescribed under Rule 56, Fed.R.Civ.P., cf. Hernandez v. Lattimore, 612 F.2d 61, 64 (2d Cir.1979). The opinion below indicates, however, that in the absence of this additional material, the court treated the motions in the manner in which they were styled, and appropriately confined its gaze to the averments of the complaint.
In pertinent part, § 51 thereof provides: