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United States District Court, S.D. New York

January 7, 2004.

MARIKA ZOLL, -against- Plaintiff, RUDER FINN, INC. and Defendants; MARIKA ZOLL, Plaintiff, -against- JORDACHE ENTERPRISES INC. Defendants

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge


The above captioned cases, 01 Civ. 1339 ("Zoll I") and 02 Civ. 3652 ("Zoll"), were consolidated for trial by an Opinion and Order of this Court filed on October 2, 2003. 2003 WL 22283830 (S.D.N.Y., Oct. 2, 2003) (the "October 2 Opinion").*fn1 Together, these two actions concern alleged violations of Plaintiffs rights of privacy and rights of publicity, trespass, and unjust enrichment arising from the production and distribution of two promotional videotapes, Page 2 referred to as Plaintiffs exhibits 21 and 23 in Zoll I, that make use of images of Plaintiff first recorded in 1978.

This is not the first time that this Court has been called upon by the parties to resolve pretrial motions in these cases. Together, parties to these two causes of action have requested and received the full attention of this Court and Magistrate Judge Francis to resolve pre-trial matters on six prior occasions, including one previous motion for reconsideration. See 2003 WL 22283830 (S.D.N.Y., Oct. 2, 2003); 2003 WL 1964054 (S.D.N.Y., April 24, 2003); 2002 WL 31873461 (S.D.N.Y., Dec. 24, 2002); 2002 WL 485733 (S.D.N.Y., March 29, 2002); 2002 WL 226692 (S.D.N.Y., Feb. 14, 2002); 2001 WL 1550943 (S.D.N.Y., Dec. 5, 2001). I have recited the facts underlying this litigation at length in prior decisions. See e.g. 2002 WL 31873461 (S.D.N. Y., Dec. 24, 2002) and 2003 WL 1964054 (S.D.N.Y., April 24, 2003). Judge Francis also provides extensive history in his Report and Recommendation reported at 2001 WL 1550943 (S.D.N.Y., Dec. 5, 2001). I assume familiarity with these and the other cited decisions rendered in this case and move directly to the merits of the present motion.

  Before the Court is Defendants' motion pursuant to Local Rule 6.3 for partial reconsideration of this Court's October 2, 2003 Opinion. Defendants suggest two grounds for their motion. First, they ask the Court to reconsider the statute of limitations analysis in the October 2, 2003 Order on the basis of overlooked facts. Second, Defendants request reconsideration of this Court's choice of law assignment in the October 2, 2003 Opinion. For reasons stated more fully below, Defendants' motion is granted. Page 3


  "The standard for granting a motion to reconsider under Local Rule 6.3 `is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.' Shrader v. CSX Transportation, Inc., 70 F.3d 255, 256 (2d Cir. 1995). Reconsideration `should not be granted where the moving party seeks solely to relitigate an issue already decided.' Id. Thus, the rule `is to be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court.' Range Road Music, Inc v. Music Sales Corp., 90 F. Supp.2d 390, 391-2 (S.D.N.Y. 2000). Nor may the moving party use such a motion to `advance new facts, issues or arguments not previously presented to the court.' Bank Leumi Trust Co. of New York v. Istim, Inc., 902 F. Supp. 46, 48 (S.D.N.Y. 1995). These limitations are designed to ensure finality and prevent the rule from becoming a vehicle by which a losing party may examine a decision `and then plug[] the gaps of the lost motion with additional matters.' Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988)." Zoll v. Jordache Enterprises Inc. 2003 WL 1964054, at *1-2 (S.D.N.Y., April 24, 2003).

  The present motion is a wholly appropriate use of Local Rule 6.3. In the October 2, 2003 Opinion this Court resolved two standing motions and dramatically altered the landscape of the above captioned litigation. In so doing the Court overlooked two small but critical artifacts created as a consequence of that Opinion. The parties have used the present motion to highlight these issues and afforded the Court: an opportunity to clarify and refine the October 2 Opinion. Page 4


 A. Statute of Limitations

  It is useful to reiterate the dates on which these two actions were filed. The complaint in Zoll I, naming only Jordache as a defendant, was filed on February 23, 2001. The complaint in Zoll II, naming both Jordache and Ruder Finn as defendants, was filed on May 13, 2002.

  In their Motion for Reconsideration, Defendants assert that any claims against Ruder Finn relying on New York Civil Rights Law §§ 50 and 51 should be dismissed as time-barred. There are three critical elements to any statute of limitations analysis: the duration of the limitation, the date on which time begins to run, and the date, if any, on which the clock was stopped.

  With respect to the first element, the statute of limitations on right of privacy claims in New York, including New York Civil Rights Law §§ 50 and 51, is one year. See N.Y. CPLR § 215. This is not contested by the parties.

  The second is the critical element in dispute on Defendants' present motion. In the motions decided by this Court's October 2, 2003 Opinion, for which Defendants now seek reconsideration, the Defendants argued that Plaintiffs cause of action in Zoll II was time barred. Defendants' analysis in their original motions asserted, wrongly, that time should have begun to run in April 2001, the date on which Defendants contended that Plaintiffs 23 was distributed to KTLA-TV, not May 16, 2001, when the tape was broadcast on KTLA-TV.*fn2 In their papers on Page 5 that motion neither Plaintiff nor Defendants discussed any earlier broadcasts of this particular tape. The Court, therefore, used May 16, 2001 as the date of first broadcast in its statute of limitations analysis in the October 2 Opinion and concluded that the statutory claims against Ruder Finn in Zoll II were timely.

  There are two tapes at issue on Defendants' present motion, Plaintiffs Exhibits 21 and 23. Plaintiff now concedes that Plaintiffs Exhibit 21 was first broadcast to a public audience on February 15, 2001. See Plaintiffs Memorandum of Law in Opposition to Defendants' Motion for Reconsideration of October 1, 2003 Opinion and Order by Judge Haight ("Plaintiff's Response"), p. 4. Therefore, I find that the one-year statute of limitations began to run with respect to Plaintiffs Exhibit 2 Ion February 15, 2001, at the latest.*fn3

  In "Defendant's [sic] Memorandum of Law in Support of their Motion for Partial Reconsideration of the Court's October 1, 2003 Opinion and Order Pursuant to Local Civil Rule 6.3" ("Defendants' Motion"), Defendants, referring to the sworn deposition testimony of Page 6 Elizabeth Berlinger and proceedings before this Court in Zoll I, allege that Plaintiffs Exhibit number 23, the tape at issue in the October 2 Order, was first broadcast to the public on November 14, 2000 during the CBS Early Show. Plaintiff does not contest this assertion in her Response. The Court will, then, take November 14, 2000 as the date on which the statute of limitations began to run with respect to Plaintiffs Exhibit number 23.

  With respect to the third element, Ruder Finn was not and is not a party to Zoll I. Plaintiff chose to include Ruder Finn in this litigation by filing a second lawsuit rather than by seeking to amend Zoll I to include Ruder Finn as a defendant. Claims in Zoll II are, therefore, outside the scope of Federal Rule of Civil Procedure 15(c), and no question of relation back arises. Thus, with respect to Ruder Finn, the proper tolling date for any statute of limitations defense is May 13, 2002, the date on which Zoll II was filed.

  The dots, now correctly placed, are easily connected. With respect to both tapes, Plaintiffs Exhibits 21 and 23, the time that elapsed between publication and the filing of action against Ruder Finn exceeded the one-year statute of limitations for claims relying on New York Civil Rights Law §§ 50 and 51. All statutory claims against Ruder Finn in the consolidated action are, thus, time barred. Accordingly, they are dismissed. New York statutory claims against Jordache derived from Zoll I persist, as do Plaintiffs California claims for trespass against both Defendants, which have a two-year statute of limitations. I need not concern myself with any statute of limitations issues relating to the unjust enrichment claims for reasons I will now recite. Page 7

 B. Choice of Law

  Defendants contend in their motion that Plaintiffs surviving unjust enrichment claims in Zoll II should be dismissed. Relying on legal principles well settled in this case, Defendants assert that this Court should apply New York choice of law principles. Defendants further contend that under these principles unjust enrichment claims are to be guided by the law of the jurisdiction with the closest contact to the cause of action. Relying upon rulings in both Zoll I and Zoll II, Defendants claim that, in this case, that jurisdiction is New York. Finally, referring to New York case law and the New York Civil Rights Law, Defendants conclude that there is no common law claim for unjust enrichment in New York for the alleged unauthorized use of Plaintiffs image. The only remedy available to Plaintiff on the present facts is under New York Civil Rights Law §§ 50 and 51. It follows, Defendants conclude, that Plaintiffs unjust enrichment claims in Zoll II must be dismissed.

  In the October 2, 2003 Opinion this Court did not specifically address choice of law with respect to unjust enrichment claims. Rather, the Court's attention was focused on the distinction between right of privacy and right of publicity claims. There I noted that right of publicity claims are property claims, and, therefore, are governed by the law of Plaintiff's state of domicile, in this case California. Plaintiffs trespass claims in Zoll II were implicated by that discussion but Defendants are right to point out that the analysis did not reach Plaintiffs unjust enrichment claims in Zoll II, which are contract or "quasi-contract" claims rather than property claims. United States Fire Ins. Co. v. Federal Ins. Co., 858 F.2d 882, 888 (2nd Cir., 1988) ("the vehicle through which the court remedies unjust enrichment is quasi contract."); McDermott v. New Page 8 York, 50 N.Y.2d 211, 217 (N.Y., 1980) ("The quasi contract was a form adopted by common-law courts to incorporate the equitable principles of unjust enrichment.").

  This Court, sitting in diversity, applies New York choice of law rules. Zoll v. Jordache Enterprises Inc., 2003 WL 22283830, at *10 (S.D.N.Y., Oct. 2, 2003). Under New York choice of law rules, contract and quasi-contract claims are governed by the law of "the jurisdiction with the most contacts to the contract in question." Alonso v. Saudi Arabian Airlines Corp., No. 98 Civ. 7781, 1999 WL 244102, at *5 (S.D.N.Y., April 23, 1999). The same is true for unjust enrichment claims. See Khreativity Unlimited v. Mattel, Inc., 101 F. Supp.2d 177, 183 (S.D.N.Y., 2000). I have previously ruled that New York is the jurisdiction that "has the most significant relationship" to the present cause of action. 2003 WL 22283830, at *11 (S.D.N.Y. Oct. 2, 2003). Therefore, I will apply New York law to Plaintiffs unjust enrichment claims in the consolidated action.

  The New York Civil Rights law preempts all common law claims based on unauthorized use of name, image, or personality, including unjust enrichment claims. See Hampton v. Guare, 195 A.D.2d 366 (A.D. 1st, 1993) ("the preemptive effect of the Civil Rights Law is fatal to the . . . causes of action of the plaintiffs amended complaint alleging common-law conversion, common-law tort and unjust enrichment where, as here, the plaintiff has no property interest in his image, portrait or personality outside the protections granted by the Civil Rights Law"); Grodin v. Liberty Cable, 244 A.D.2d 153 (A.D. 1st, 1997) ("it was error not to dismiss plaintiffs causes of action for negligence and unjust enrichment, there being no common-law right of privacy in New York"). The Civil Rights Law does not simply cover or define common law claims, it provides an exclusive cause of action for cases such as the one at bar. That is to say, Page 9 there is no cause of action in New York for unjust enrichment arising from alleged unauthorized use of personal image. With no recognized cause of action, all claims in the consolidated action that assert unjust enrichment from the alleged unauthorized use of Plaintiff's image are dismissed. Plaintiffs property claims against both Defendants under California law persist, as do Plaintiffs New York statutory claims against Jordache.


  For the foregoing reasons, the Court makes the following Order:

  Defendants' motion for partial reconsideration is granted. Plaintiffs statutory claims against Ruder Finn in the consolidated action are dismissed. Plaintiffs unjust enrichment claims against Jordache and Ruder Finn are also dismissed.

  A separate Pre-Trial and Scheduling Order is being filed concurrently herewith.


  The Court makes the following Pre-Trial and Scheduling Order in the above captioned cases, which have been consolidated for trial:

  1. Trial of these actions will commence on Monday, March 22, 2004, at 10:00 a.m., in Courtroom 17C, 500 Pearl Street,

  2. On or before February 6, 2004, the parties are directed to file and serve Pre-Trial Statements setting forth:

(a) The relevant facts as to which the party contends there is no dispute.
(b) The names of the witnesses the party intends to call in its case in chief
(c) A descriptive list of the exhibits the party intends to offer in its case in chief Witnesses not so identified will not be allowed to testify at the trial. Exhibits not so listed will not be received in evidence.
  3. On or before February 27, 2004, the parties are directed to file and serve proposed jury voir dire requests and proposed requests to charge, the latter accompanied by citations to authorities.

  4. On Monday, March 8, 2004, at 2:00 p.m. in Courtroom 17C, 500 Pearl Street, counsel are directed to attend a conference with the Court to consider any in limine motions.


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