Filed: Sep. 22, 2015
Latest Update: Sep. 22, 2015
Summary: MEMORANDUM ORDER GERALD A. McHUGH , District Judge . This 22nd day of September, 2015, upon review of Defendants' Motions to Dismiss or Partially Dismiss, docketed as document numbers 34, 35, 36, 39, and 40, and Plaintiffs' Responses thereto, it is hereby ORDERED as follows: 1) Plaintiffs' claim for "False Light" Invasion of Privacy in Count II of the First Amended Complaint is DISMISSED, without leave to amend. South Carolina law governs the issue and does not recognize a claim for fa
Summary: MEMORANDUM ORDER GERALD A. McHUGH , District Judge . This 22nd day of September, 2015, upon review of Defendants' Motions to Dismiss or Partially Dismiss, docketed as document numbers 34, 35, 36, 39, and 40, and Plaintiffs' Responses thereto, it is hereby ORDERED as follows: 1) Plaintiffs' claim for "False Light" Invasion of Privacy in Count II of the First Amended Complaint is DISMISSED, without leave to amend. South Carolina law governs the issue and does not recognize a claim for fal..
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MEMORANDUM ORDER
GERALD A. McHUGH, District Judge.
This 22nd day of September, 2015, upon review of Defendants' Motions to Dismiss or Partially Dismiss, docketed as document numbers 34, 35, 36, 39, and 40, and Plaintiffs' Responses thereto, it is hereby ORDERED as follows:
1) Plaintiffs' claim for "False Light" Invasion of Privacy in Count II of the First Amended Complaint is DISMISSED, without leave to amend. South Carolina law governs the issue and does not recognize a claim for false light invasion of privacy.1 Accordingly, Plaintiffs are precluded from arguing false light claims as a separate cause of action. However, as damages rooted in the loss of privacy may still be relevant to a tort of defamation, Erickson v. Jones St. Publishers, L.L.C., 629 S.E.2d 653, 673 (2006), Plaintiffs' allegations under this count are deemed incorporated into Count I alleging Defamation, which has not been challenged by any of the Defendants. My analysis of the governing law does not change in light of the additional facts alleged in Plaintiff Monarch's supplemental affidavit. Pl.'s Resp. Def. Brand's Mot. to Dismiss, Ex. A, at ¶ 5(a-b). I am therefore convinced that amendment of the First Amended Complaint would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962) (naming "futility of amendment" as a proper reason for denying leave to amend).
2) Plaintiffs' claim for "Wrongful Appropriation of Personality" in Count III of the First Amended Complaint is DISMISSED. There are no relevant differences between the Pennsylvania and South Carolina laws for this cause of action.2 When application of the law of either state would produce the same result, then "there is no conflict at all, and a choice of law analysis is unnecessary." Hammersmith, 480 F.3d at 230 (3d Cir. 2007); see also On Air Entm't Corp. v. Nat'l Indem. Co., 210 F.3d 146, 149 (3d Cir. 2000). The law of the forum state therefore applies. The essence of this tort requires that a Defendant act with the purpose of taking advantage of the positive value and good will associated with another's reputation. See AFL Philadelphia LLC v. Krause, 639 F.Supp.2d 512, 531 (E.D. Pa. 2009). Plaintiffs make allegations contrary to the essential elements of the tort, including that Defendants acted "with the apparent intent of causing harm to the reputation . . . of Plaintiffs." Pl.'s First Am. Compl. at ¶ 154. Plaintiffs have therefore failed to state a plausible claim to relief under this cause of action.
3) Plaintiffs' claim for "Wrongful Publicizing of Private Affairs" in Count IV of the First Amended Complaint is DISMISSED, without leave to amend. There are again no relevant differences between the Pennsylvania and South Carolina laws for this cause of action.3 Since the application of each state's substantive law produces the same result, the court may apply the law of the forum state. Hammersmith., 480 F.3d at 230. In order to state a claim for this tort, the law requires that the facts publicized be private, rather than facts "which the plaintiff himself leaves open to the public eye." Harris by Harris v. Easton Pub. Co., 483 A.2d 1377, 1384 (1984). In addition, there is no liability for publication of facts that are of public concern, such as facts in official court records or facts regarding events like weddings, even if intended to be private affairs. Id. at 1384-85. As Defendant Brand.com notes, if the published facts in question were true, they would be of legitimate public concern. Mem. Supp. Def. Brand.com's Mot. to Dismiss at 9. Plaintiffs have therefore failed to state a plausible claim to relief under this cause of action. My analysis does not change in light of the additional allegations in Plaintiff Monarch's supplemental affidavit, Pl.'s Resp. Def. Brand's Mot. to Dismiss, Ex. A, at ¶ 5(d), which include only facts available in public documents and left "open to the public eye." I am therefore convinced that amendment of the First Amended Complaint would be futile.
4) Plaintiffs' claim for "Aiding and Abetting" in Count VI of the First Amended Complaint is DISMISSED. It is unclear whether Pennsylvania or South Carolina would recognize "aiding and abetting" as a separate cause of action in the context of Plaintiffs' claims.4 However, the allegations of concerted action that Plaintiffs make in support of this claim, Pl.'s First Am. Compl. at ¶ 178, are repeated again in support of Plaintiffs' claim for Conspiracy in Count VII of the First Amended Complaint, Pl.'s First Am. Compl. at ¶ 204. I find that these allegations are more appropriately covered by the claim of conspiracy, which no defendant has moved to dismiss. Accordingly, I dismiss aiding and abetting as a separate cause of action, but Plaintiffs' allegations under this count are deemed incorporated into Count VII alleging Conspiracy.
5) Defendant Gorman's Motion to dismiss Plaintiff's Claim for "Fraudulent Transfer" in Count VIII of the First Amended Complaint is DENIED. Defendant Gorman argues that since the alleged transfers occurred approximately ten months before Plaintiffs filed suit, Defendant could not have perceived Plaintiffs as potential creditors. Def. Gorman's Partial Mot. to Dismiss at ¶¶ 43-45. However, a transfer may be deemed fraudulent even if the creditor's claim arose after the transfer was made. 12 P. S. § 5104(a).5 Whether the debtor had been "sued or threatened with suit" at the time of the transfer is one factor among many to be considered. 12 P. S. § 5104(b)(4). As I must accept Plaintiffs' allegations as true in assessing a motion to dismiss, Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009), I find that Plaintiffs have pled sufficient facts to state a plausible claim for fraudulent transfer.
6) Plaintiffs' claim for "Alter Ego" in Count IX of the First Amended Complaint is DISMISSED. The alter ego doctrine represents a substantive principle of law separate from a cause of action. Whether the doctrine applies in this case will be a function of the evidence. This claim is therefore dismissed as a count in the complaint, without prejudice to Plaintiffs' ability to raise such a substantive legal argument when appropriate.
7) Plaintiffs' claim for Preliminary and Permanent Injunction in Count X of the First Amended Complaint is DISMISSED. Injunctive relief is a remedy, not a separate cause of action. Plaintiffs suggest that they intend to file a Motion for Injunctive Relief pursuant to Fed. R. Civ. P. 65. Pl.'s First Am. Compl. at ¶ 269. This count of the complaint is dismissed without prejudice to Plaintiffs' right to take such affirmative steps to pursue the entry of an injunction when appropriate.
