     10-4093
     MetLife Investors USA Ins. Co. v. Pratt


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of September, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT A. KATZMANN,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13      METLIFE INVESTORS USA INSURANCE
14      COMPANY,
15
16                   Plaintiff-Counter-Defendant-
17                   Appellee,
18
19      DANIEL ZEIDMAN, as Trustee of the
20      Esther Zeidman Trust,
21
22                   Defendant-Cross Claimant-
23                   Cross Defendant-Appellee,
24
25                   -v.-                                               10-4093
26



                                                 1
 1   LAVELL S. PRATT, as Personal
 2   Representative of the Estate of Sherry
 3   Pratt,
 4
 5            Defendant-Cross Defendant-
 6            Cross Claimant-Counter-
 7            Claimant-Appellant.
 8
 9
10   - - - - - - - - - - - - - - - - - - - -X
11
12   FOR APPELLANT:    Peter Campbell King
13                     Cline, King & King, P.C.
14                     Columbus, IN
15
16
17
18   FOR APPELLEE METLIFE INVESTORS USA INSURANCE COMPANY:
19
20                     Christopher Gilbert
21                     The Unger Law Group, P.L.
22                     Orlando, FL
23
24
25
26   FOR APPELLEE DANIEL ZEIDMAN:
27
28                     Joseph P. LaSala
29                     McElroy, Deutsch, Mulvaney & Carpenter,
30                     LLP
31                     Morristown, NJ
32
33
34        Appeal from a judgment of the United States District
35   Court for the Eastern District of New York (Spatt, J.).
36
37        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
38   AND DECREED that the district court’s judgment is AFFIRMED.
39
40        Lavell S. Pratt, as Personal Representative of the
41   Estate of Sherry Pratt, appeals the district court’s
42   judgment dismissing his cross claim and counter claim
43   alleging that MetLife Investors USA Insurance Company and
44   Daniel Zeidman, as Trustee of the Esther Zeidman Trust,
                                    2
 1   violated Illinois statutory and common law, including the
 2   Illinois Right of Publicity Act (“IRPA”). We assume the
 3   parties’ familiarity with the underlying facts, the
 4   procedural history, and the issues presented for review.
 5
 6        We review de novo a district court’s dismissal under
 7   Federal Rule of Civil Procedure 12(b)(6), accepting all
 8   factual allegations as true and drawing all reasonable
 9   inferences in favor of the pleader. See ECA & Local 134
10   IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553
11   F.3d 187, 196 (2d Cir. 2009). “To survive a motion to
12   dismiss, a complaint must plead enough facts to state a
13   claim to relief that is plausible on its face.” Id.
14   (internal quotation marks omitted). “[A]lthough ‘a court
15   must accept as true all of the allegations contained in a
16   complaint,’ that ‘tenet’ ‘is inapplicable to legal
17   conclusions,’ and ‘[t]hreadbare recitals of the elements of
18   a cause of action, supported by mere conclusory statements,
19   do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
20   2009) (second alteration in original) (quoting Ashcroft v.
21   Iqbal, 129 S. Ct. 1937, 1949 (2009)).
22
23   [1] Appellant first argues that appellees’ use of Sherry
24   Pratt’s identity as the measuring life under a since-
25   rescinded annuity contract without her consent violated Ms.
26   Pratt’s right of publicity under the IRPA. The IRPA
27   provides that “A person may not use an individual’s identity
28   for commercial purposes during the individual’s lifetime
29   without having obtained previous written consent . . . .”
30   765 Ill. Comp. Stat. 1075/30(a). The statute defines
31   “commercial purpose” to mean “the public use or holding out
32   of an individual’s identity (i) on or in connection with the
33   offering for sale or sale of a product, merchandise, goods,
34   or services; (ii) for purposes of advertising or promoting
35   products, merchandise, goods, or services; or (iii) for the
36   purpose of fundraising.” Id. 1075/5. The statute does not
37   define “public use.” The district court consulted Webster’s
38   Third New International Dictionary, which defines “public”
39   to mean “accessible to or shared by all members of the
40   community,” or “exposed to general view.” MetLife Investors
41   USA Ins. Co. v. Zeidman, 734 F. Supp. 2d 304, 311 (E.D.N.Y.
42   2010). Under Illinois law, “[w]hen [a] statute contains
43   undefined terms, it is entirely appropriate to employ a
44   dictionary to ascertain the plain and ordinary meaning of

                                  3
 1   those terms.” People v. Davison, 906 N.E.2d 545, 551 (Ill.
 2   2009). Appellant has failed to allege that appellees’ use
 3   of Ms. Pratt’s identity in connection with a private annuity
 4   contract was “public” in the ordinary sense of the word, and
 5   therefore has not stated a plausible claim for relief under
 6   the IRPA.
 7
 8   [2] Appellant has also failed to state a claim for common
 9   law appropriation. The Appellate Court of Illinois has held
10   that the IRPA superseded the common law tort of
11   appropriation. Blair v. Nev. Landing P’ship, RBG, LP, 859
12   N.E.2d 1188, 1192 (Ill. App. Ct. 2006) (“After December 31,
13   1998, the common-law tort of appropriation of one’s likeness
14   ceased to exist. The Right of Publicity Act, effective
15   January 1, 1999, completely replaced the common-law tort of
16   appropriation of likeness . . . .”). “This Court is bound
17   to apply the law as interpreted by a state’s intermediate
18   appellate courts unless there is persuasive evidence that
19   the state’s highest court would reach a different
20   conclusion.” V.S. v. Muhammad, 595 F.3d 426, 432 (2d Cir.
21   2010). Appellant has provided no such evidence, and cites
22   no post-IRPA Illinois case recognizing the continuing
23   vitality of a separate appropriation tort distinct from the
24   right to publicity under the IRPA that would cover the
25   conduct alleged in appellant’s cross claim and counter
26   claim. Appellant has therefore failed to state a claim for
27   relief under Illinois common law.
28
29        For the foregoing reasons, the judgment of the district
30   court is hereby AFFIRMED.
31
32
33
34                              FOR THE COURT:
35                              CATHERINE O’HAGAN WOLFE, CLERK
36




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