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Jill E. MAREMONT, Plaintiff, v. SUSAN FREDMAN DESIGN GROUP, LTD - Right of Publicity, Right to Privacy, Summary Judgement,

AMY J. ST. EVE, District Judge.

On December 9, 2010, Plaintiff Jill E. Maremont filed the present Complaint alleging a violation of the Lanham Act, 15 U.S.C. § 1125(a), against Defendants Susan Fredman Design Group, Ltd. ("SFDG") and Susan Fredman (Count I) Pursuant to the Court's supplemental jurisdiction, Maremont also alleges a claim under the Illinois Right of Publicity Act, 765 ILCS 1075, et seq. (Count II) and a common law right to privacy claim (Count III). See 28 U.S.C. § 1367. 

Before the Court was Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and motion for summary judgment under Rule 56(b). Because Defendants' Northern District of Illinois Local Rule 56.1(a) Statement of Facts relies solely on the allegations in the Complaint—which are not evidence for summary judgment purposes —the Court denied Defendants' motion for summary judgment without prejudice and construes the present motion as a motion to dismiss pursuant to Rule 12(b)(6). SeeNisenbaum v. Milwaukee County, 333 F.3d 804, 810 (7th Cir.2003) ("Allegations in a complaint are not evidence"); see also Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009) (courts may only consider admissible evidence in determining motions for summary judgment).^[1] For the following reasons, the Court granted in part and denied in part Defendants' motion to dismiss.
"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009). Pursuant to Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
In her Complaint, Maremont alleged that Defendant Susan Fredman ("Fredman") is one of Chicago's prominent residential interior designers.  Maremont further alleges that SFDG operates full-service offices in Chicago's River North and Michigan's Harbor Country with corresponding retail stores at each location. (Id. ¶ 9.) SFDG also operates its business through an e-commerce site. (Id.) 
During her tenure at SFDG, Maremont maintained that she became well-known in the Chicago design community allowing her to create a popular personal following on Facebook and Twitter. (Id. ¶ 11.) Maremont also alleges that she created a SFDG blog entitled "Designer Diaries: Tales from the Interior" ("Designer Diaries") that is hosted on SFDG's blog. (Id. ¶ 12.) Maremont maintains that she authored frequent Posts and Tweets to her personal Facebook and Twitter accounts, along with the material for the Defendants' Designer Diaries blog. (Id. ¶ 13.) Maremont's image appeared on each personal Post and Tweet, which unmistakably distinguished her likeness. (Id. ¶ 14.)
On September 15, 2009, Maremont and her co-worker, Bridget Albert, left the office to purchase supplies for a SFDG-sponsored event. (Id. ¶ 15.) As Maremont and Albert crossed the street, an automobile ran a stoplight, crashed into a cab, and hit both Maremont and Albert. (Id. ¶ 16.)
Shortly thereafter, Fredman and another SFDG employee visited Maremont at the hospital and asked her about her work projects. (Id. ¶ 21.) Also while at Northwestern Memorial Hospital, a visitor told Maremont that Defendants were impersonating her by authoring Posts and Tweets to her personal Facebook and Twitter followers promoting SFDG. (Id. ¶ 22.) Maremont also alleges that each Post and Tweet displayed Maremont's name and image giving followers the appearance that she was the author. (Id.) Maremont then asked Fredman and other SFDG employees to refrain from impersonating her on Facebook and Twitter because it appeared to Maremont's followers that her injuries were not severe and that she had returned to work. (Id. ¶ 23.) Despite Maremont's request, Defendants continued to impersonate her by authoring her Posts and Tweets. (Id. ¶ 24.)
On December 11, 2009, Maremont's husband read to her some of the Posts and Tweets that the Defendants authored impersonating her, which caused Maremont to suffer severe mental distress. (Id. ¶ 30.) Maremont and her husband immediately changed the passwords to her personal Facebook and Twitter accounts. (Id. ¶ 31.) Fredman then text messaged Maremont asking her whether she had changed her Facebook and Twitter passwords. (Id. ¶ 32.)
In Count I of her Complaint, Maremont alleges a false association claim, also known as a false endorsement claim, under the Lanham Act, 15 U.S.C. § 1125(a)(1)(A). As the Seventh Circuit explains, one bases of liability under the Lanham Act includes "false representations concerning the origin, association or endorsement of goods or services through the wrongful use of another's distinctive mark, name, trade dress or other device." L.S. Heath & Son, Inc. v. AT & T Info. Sys., Inc., 9 F.3d 561, 575 (7th Cir.1993). 
Here, Maremont has sufficiently alleged that—as a professional interior designer —she become well-known in the Chicago design community allowing her to create a popular personal following on Facebook and Twitter. Maremont also alleges that her Tweets and Posts relate to her work in a commercial context, namely, as a professional interior designer and employee of SFDG. Also, construing the facts and all reasonable inferences in Maremont's favor, she alleges that she was engaged in the commercial marketing of her skills when Defendants wrongfully used her name and likeness by authoring Tweets and Posts under her name. See Stayart, 651 F.Supp.2d at 881. As such, Maremont alleges a commercial injury based on Defendants' deceptive use of her name and likeliness.

In Count II of the Complaint, Maremont alleges that Fredman and/or SFDG used her likeness for the purpose of promoting Defendants' design business and retail store without Maremont's written consent in violation of Illinois' Right to Publicity Act. Specifically, 765 ILCS 1075/30(a) states in relevant part: "A person may not use an individual's identity for commercial purposes during the individual's lifetime without having obtained previous written consent from the appropriate person or persons." In their motion to dismiss, Defendants argue that Maremont's Right to Publicity Act claim accrued sometime in September 2009—the approximate date of Defendants' first Tweet impersonating Maremont—which was more than one year before she filed the present lawsuit on December 9, 2010. As such, Defendants argued that this claim is untimely under the one-year limitations period. See Blair v. Nevada Landing P'ship,369 Ill.App.3d 318, 322, 307 Ill.Dec. 511, 859 N.E.2d 1188 (Ill.2006).

Here, Maremont did not dispute that the statute of limitations for her Illinois Right to Publicity Act claim is one year, but that the limitations period began to run on the date of Defendants' last unlawful Tweet, December 11, 2009, based on 972*972 the continuing violation rule. As the Illinois Appellate Court in Blair teaches:

Under the "continuing violation rule," where a tort involves a continuing or repeated injury the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease. A continuing violation is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation. However, where there is a single overt act from which subsequent damages may flow, the statute begins to run on the date the defendant invaded the plaintiff's interest and inflicted injury, and this is so despite the continuing nature of the injury.

Blair, 369 Ill.App.3d at 323, 307 Ill.Dec. 511, 859 N.E.2d 1188 (internal citations omitted).

In Count III of the Complaint, Maremont alleges that Fredman and/or SFDG misappropriated her name and image for commercial purposes without Maremont's consent, and thus Defendants are liable under the common law right of privacy.

Nonetheless, Maremont maintained that she sufficiently alleged two other common law invasion of privacy torts: (1) unreasonable intrusion upon the seclusion of another and (2) a claim based on publicity that reasonably places another in a false light before the public. See 973*973 Blair, 369 Ill.App.3d at 322, 307 Ill.Dec. 511, 859 N.E.2d 1188. The Court disagrees. Accordingly, the Court grants Defendants' motion to dismiss Count III of the Complaint without prejudice.

For these reasons, the Court granted in part and denied in part Defendants' motion to dismiss and denied Defendants' motion for summary judgment without prejudice. In addition, the Court denies Plaintiff's motion for partial summary judgment and leave to amend without prejudice. Plaintiff given until April 5, 2011 to file an Amended Complaint consistent with this order.

[1] Plaintiff's attempt to amend the Complaint by attaching an Amended Complaint to an affidavit fails to follow the proper procedural rules, including Northern District of Illinois Local Rule 5.3(b); therefore, the Court denies Plaintiff's motion for leave to amend the Complaint without prejudice. Similarly, the Court denies Plaintiff's cross-motion for partial summary judgment brought pursuant to Rule 56(a) without prejudice because Plaintiff has failed to follow the appropriate procedural rules, including Local Rule 5.3(b) and 56.1(a). The Court reminds Plaintiff's counsel that the Northern District of Illinois Local Rules govern this action and not the Local Rules for the United States Courts for the Southern and Eastern Districts of New York.

772 F.Supp.2d 967 (2011)
Jill E. MAREMONT, Plaintiff,v.SUSAN FREDMAN DESIGN GROUP, LTD. and Susan Fredman, Defendants.
United States District Court, N.D. Illinois, Eastern Division.

Case No. 10 C 7811. March 15, 2011. http://scholar.google.com/scholar_case?case=5901156139035785537&q=Facebook&hl=en&as_sdt=4,14,112,127,268,269,270,271,272,314,315,331,332,333,334,335,377,378&as_ylo=2009