The opinion of the court was delivered by: Frederick J. Scullin, Jr., United States Chief District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs' amended complaint asserts three causes of action, all of which are premised upon Defendants' alleged violation of New York Civil Rights Law §§ 50 and 51. The first cause of action, asserted against all Defendants, asserts that Defendants injured Plaintiff Frazier by misappropriating his image and likeness for advertising and promotional purposes in violation of §§ 50 and 51 of New York Civil Rights Law. The second cause of action, asserted against all Defendants, asserts that Defendants injured both Plaintiffs as a result of the same conduct charged in the first cause of action. The third cause of action, asserts a claim against Defendants Halbritter, Stitzer and Brophy (collectively "the individual Defendants"), alleging that they "acted in concert and by agreement to misappropriate the Plaintiff's image and likeness for commercial gain . . . [and that their] agreement to misappropriate Plaintiffs [sic] Smokin Joe's Image was outside of each respective Individuals' [sic] scope of tribal duties." See Amended Complaint at ¶¶ 55, 57. Plaintiffs seek monetary, declaratory, and injunctive relief.*fn1
Presently before the Court are two motions: (1) Defendants' motion to dismiss the amended complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and (2) Plaintiffs' motion for leave to amend their amended complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. After summarizing the facts that underlie this action, the Court will address each of these motions in turn.
On June 8, 2001, Jacquelyn Frazier-Lyde, the daughter of Plaintiff Frazier, engaged in a boxing match at the Turning Stone Casino ("Casino") with Laila Ali-McClain, the daughter to Mohammed Ali. The match was publicized as "Frazier-Ali/Ali-Frazier IV." Prior to the match, in March 2001, Defendants showed Ms. Frazier-Lyde a version of Plaintiff Frazier's image and likeness for use as a poster to promote the match for her approval. Ms. Frazier-Lyde told Defendants that she could not authorize the use of her father's image and likeness and that they would have to secure such authorization from Plaintiffs. Defendants did not secure such authorization but, instead, sought only to contract with Plaintiff Frazier for his personal appearance at the match. Defendants were advised that Plaintiff Frazier would not be present at the Casino during the June 8, 2001 boxing event in any capacity.
Without Defendants' prior knowledge, Plaintiff Frazier attended the June 8, 2001 event as a member of the audience to support his daughter. During the event, Plaintiff Frazier entered the casino area of the Casino's main building and saw that his image and likeness had been superimposed on the surface of certain "high roller" gaming tables. The same image and likeness appeared on programs, leaflets, mailings, souvenirs and other party favors that Defendants provided to high rollers and other preferred gambling customers to induce them to attend and to participate in the Casino's gambling activities during and around the time of the June 8, 2001 boxing event. The unauthorized use and display of Plaintiff Frazier's image and likeness occurred on a systematic, continuous, and daily basis from about March 1, 2001, through September 30, 2001, as part of Defendants' marketing and promotion of the June 8, 2001 "Frazier-Ali/Ali-Frazier IV" event.
Plaintiff Frazier had not previously been associated with gaming or gambling activities, had never used his name, likeness or image in connection with the advertising and/or promotion of such activities except at a charitable fund raiser, and during the past two years had rejected an overseas on-line business opportunity involving endorsement of commercial gambling because it required the use of his name and likeness in connection with a commercial gambling activity. As "a person of Christian faith" Plaintiff Frazier has suffered extreme emotional damage and compensatory loss because Defendants' conduct has "irreparably damaged his reputation, distorted the public image he has established for himself, exploited and abused his property rights in himself and his image and offended his personal sensibilities." See Amended Complaint at
Based upon these facts, Plaintiffs assert that Defendants' unauthorized use of Plaintiff Frazier's image and likeness on the gaming tables and on leaflets, programs, mailings and party favors violated §§ 50 and 51 of New York Civil Rights Law and that Defendants undertook the improper use of the image and likeness knowingly, intentionally, maliciously, and solely for Defendants' exclusive advertising and marketing benefit and for their commercial and financial gain.
A. Subject matter jurisdiction — in general
A court must consider a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure before any other motion because a finding that the Court lacks jurisdiction would render all other objections and defenses moot, including the defense of tribal sovereign immunity. See Rhulen Agency, Inc. v. Alabama Ins. Guaranty Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (citations omitted); Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 28 (1st Cir. 2000) (citation omitted).
"Federal courts are courts of limited jurisdiction." Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 136 (2d Cir. 2002). Under Article III of the United States Constitution, a district court has "jurisdiction to hear cases in which there is a federal question and cases based on the diversity of citizenship of the parties." Id. (citations omitted). "`[P]arties cannot confer subject matter jurisdiction where the Constitution and Congress have not. The absence of such jurisdiction is non-waivable[.]'" Id. (quotation omitted).
In the present case, Plaintiffs assert that this Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332(a). They also assert that this Court has federal question jurisdiction over this action pursuant to 25 U.S.C. § 233 and 28 U.S.C. § 1330, 1331, 1360, 1362 and 1605. The Court will examine each of these arguments in turn.
B. Federal question jurisdiction
"`Federal question jurisdiction exists where a well-pleaded complaint "establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law."'" Perpetual Sec., 290 F.3d at 137 (quotation omitted). "When deciding whether federal question jurisdiction exists, [a court] must proceed prudently and make pragmatic distinctions between those allegations, if any, that raise substantial questions and those that do not." Id. (citation omitted). In doing so, the court examines "`the nature of the federal question raised in [each] claim to see if it is sufficiently substantial to warrant federal jurisdiction.'" Id. (quotation omitted).
Section 1331 provides that district courts have "original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331 (emphasis added). As the Supreme Court has noted "a `suit arises under the law that creates the cause of action.'" Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850-51 (1985) (quoting American Well Works Co. v. Layne and Bowler Co., 241 U.S. 257, 260 (1916)).
In the present case, Plaintiffs argue that "federal question jurisdiction" exists under 28 U.S.C. § 1331 because the case presents questions concerning tribal immunity and the impact upon tribal immunity of certain federal statutes. However, it is clear from Plaintiffs' amended complaint that all three causes of action are created by, and arise under, New York Civil Rights Law §§ 50 and 51. The fact that the Court must review federal statutory and case law to determine whether Plaintiffs may pursue their state law claims against Defendants in federal court does not transform Plaintiffs' action from one arising under New York law into one arising under federal law. See generally Oklahoma Tax Comm'n v. Graham, 489 U.S. 838, 841-42 (1989). Moreover, despite Plaintiffs' arguments to the contrary, the mere presence of a tribal sovereign immunity defense does not, in and of itself, "convert a suit otherwise arising under state law into one which, in the statutory sense, arises under federal law." Id. at 841 (citation omitted). Accordingly, the Court concludes that § 1331 does not provide a basis for this Court to assert subject matter jurisdiction over this action.
2. Foreign Sovereign Immunity Act
Plaintiffs also invoke the Foreign Sovereign Immunity Act as a basis for federal question jurisdiction. This Act provides, in pertinent part, that "[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which the action is based upon a commercial activity carried on in the United States by the foreign state[.]" 28 U.S.C. § 1605(a)(2). It is well-established, however, that an Indian tribe is not a foreign state and that the Foreign Sovereign Immunity Act does not impair the immunity of Indian tribes. See Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759 (1998). For this reason, the Court concludes that neither 28 U.S.C. § 1605 nor 28 U.S.C. § 1330, which provides jurisdiction over foreign states where immunity has been lifted under the Foreign Sovereign Immunity Act, provides a basis for this Court to assert subject matter jurisdiction over this action.
3. Professional Boxing Safety Act
Plaintiffs also invoke jurisdiction under the Professional Boxer Safety Act, 15 U.S.C. § 6301, et seq. Section 6309(d) of the Act provides that "[a]ny boxer who suffers economic injury as a result of a violation of any provision of this chapter may bring an action in the appropriate Federal or State court and recover the damages suffered, court costs, and reasonable attorneys fees and expenses." 15 U.S.C. § 6309(d). Neither Plaintiff states a claim as a "boxer" as that term is defined in this Act, i.e., "an individual who fights in a professional boxing match." 15 U.S.C. § 6301(1). Moreover, neither Plaintiff claims an injury arising as a result of a violation of any provision of this Act, which establishes and provides for enforcement of safety standards to "protect the welfare of professional boxers" and "to assist State boxing commissions to provide proper oversight for the professional boxing industry in the United States." 15 U.S.C. § 6302. For these reasons, the Court concludes that the Professional Boxing Safety Act does not provide a basis for this Court to exercise subject matter jurisdiction over this action.
4. Indian Gaming Regulatory Act
The Indian Gaming Regulatory Act, 25 U.S.C. § 2701, et seq., also does not provide a basis for subject matter jurisdiction. This Act does not create a general private right of action for individuals or corporations, see 25 U.S.C. § 2710(d)(7)(A)(i)-(iii), nor have the courts created such a right. See generally Hein v. Capitan Grande Band of Diegueno Mission Indians, 201 F.3d 1256, 1260 (9th Cir. 2000) (footnote omitted); Hartman v. Kickapoo Tribe Gaming Comm'n, 176 F. Supp.2d 1168, 1175 (D.Kan. 2001) (citations omitted). Accordingly, the Court concludes that the Indian Gaming Regulatory Act does not provide a basis for this Court to exercise subject matter jurisdiction over this action.
5. Indian Civil Rights Act
Under the Indian Civil Rights Act, 25 U.S.C. § 1302, et seq., the only relief available in federal court is the writ of habeas corpus authorized in § 1303. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 69-72 (1978). Clearly, this Act does not form a basis for this Court to exercise subject matter jurisdiction over this action.
6. Other jurisdictional citations
The other statutes that Plaintiffs cite in support of federal question jurisdiction do not assist them. Section 1362 of Title 28 is inapplicable because it pertains only to actions brought by an Indian tribe and depends upon the existence of a federal question. Both 28 U.S.C. § 1360 and 25 U.S.C. § 233 concern state court jurisdiction. Nothing in these statutes suggests that they create grounds for this Court to exercise federal question jurisdiction over this action or overrule the existing limits on federal jurisdiction.
In sum, the Court concludes that Plaintiffs have failed to establish any basis for this Court to exercise federal question jurisdiction over this action. Therefore, in order for this case to proceed in this Court, the Court's jurisdiction ...