Case 8:21-cv-02558-VMC-TGW Document 36 Filed 11/24/21 Page 1 of 23 PageID 424

IN THE UNITED STATES DISTRICT COURT

CAROLE BASKIN and Case No.: 8:21-cv-02558-VMC-TGW

Plaintiffs,

vs.

ROYAL GOODE PRODUCTIONS LLC and

Defendants.
___________________________________

DEFENDANTS’ MOTION TO DISMISS OR TRANSFER AND

Defendants Royal Goode Productions LLC (“RGP”) and Netflix, Inc.

(“Netflix”) (collectively, “Defendants”) seek relief under alternative theories

involving the doctrine of forum non conveniens, 28 U.S.C. § 1404(a), and Rule 12(b)(6)

of the Federal Rules of Civil Procedure. In support of this motion, Defendants state:

INTRODUCTION AND BACKGROUND

From 2014 to 2019, RGP filmed Plaintiffs Carole and Howard Baskin

(collectively, “Plaintiffs”) in connection with footage that formed the basis of a

seven-part docuseries, titled Tiger King (“Tiger King 1”). After the success of Tiger

King 1, RGP produced a sequel, Tiger King 2, which Netflix released on November

17, 2021. Several weeks after Defendants’ announcement of Tiger King 2, and before

its release, Plaintiffs filed the instant action alleging a breach of contract claim and

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seeking a declaratory judgment in connection with their appearance in Tiger King 2.

(D.E. 1). Plaintiffs allege that they signed two appearance releases—on April 30,

2016 and April 3, 2018 (“the Earlier Releases”)—that do not permit Defendants to

reuse footage of them in a sequel. (D.E. 1 ¶ 23; D.E. 1-7 ¶¶ 15-17; D.E. 1-9 ¶¶ 12-14,

17). Plaintiffs fail to attach the subsequent appearance releases and location

agreements 1 signed in 2019 (collectively, “the 2019 Agreements”), which supersede

the Earlier Releases and include a forum-selection clause identifying New York as

having exclusive jurisdiction. See (D.E. 24-1 at 5); (D.E. 24-2 at 4); (D.E. 24-4).

ARGUMENT

Plaintiffs’ Complaint warrants dismissal. The parties’ agreements include a

mandatory forum-selection clause designating New York as the proper forum.

Plaintiffs are bound by the forum-selection clause. Defendants ask this Court to

enforce the clause via dismissal or transfer of the case to the Southern District of

New York in Manhattan pursuant to 28 U.S.C. § 1404(a).

Should the Court reach the merits of the claims asserted, dismissal is required

for several independent reasons. First, Plaintiffs have not and cannot adequately

plead compensable damages, an essential element of a breach of contract claim.

Second, Defendants did not need to obtain new releases to use the footage of

Plaintiffs in Tiger King 2. Third, Plaintiffs’ request for declaratory relief serves no

1
In their latest filing (D.E. 28 at 2 n.1) and at oral argument on Plaintiffs’ Motion for Preliminary
Injunction (D.E. 4), Plaintiffs withdrew their request to enjoin footage shot pursuant to the 2019
location agreement.

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useful purpose and merely duplicates the breach of contract claim. Plaintiffs’

Complaint fails to state a claim upon which relief can be granted and must be

dismissed in its entirety.

I. The Forum-Selection Clause Requires Transfer Under Forum Non

The construction of forum selection clauses is a matter of federal common

law. Cornett v. Carrithers, 465 F. App’x 841, 842 (11th Cir. 2012). When assessing

whether to enforce a forum-selection clause and transfer a case, a court must first

determine (1) “whether the clause is valid,” (2) “whether the claim at issue falls

within the scope of the clause—by looking to the language of the clause itself,” and

(3) “whether the clause is mandatory or permissive.” Hindi v. BirdEye, Inc., No. 19-cv-

61201, 2019 WL 4091425, at *3 (S.D. Fla. Aug. 29, 2019) (citing Bahamas Sales

Assoc., LLC v. Byers, 701 F.3d 1335, 1340 (11th Cir. 2012); Fla. Polk Cnty. v. Prison

Health Servs. Inc., 170 F.3d 1081, 1083 (11th Cir. 1999)). If the court concludes an

enforceable clause exists, it must then conduct a forum non conveniens analysis to

decide whether the case should be transferred. Hindi, 2019 WL 4091425, at *6 (citing

Pappas v. Kerzner Int'l Bahamas Ltd., 585 F. App’x 962, 965 (11th Cir. 2014)).

The 2019 Agreements include forum-selection clauses that state the

agreements “and any dispute relating thereto shall be interpreted, enforced and governed .

. . under the jurisdiction of the New York courts located within New York County.” 2 As

2
This Court may consider the 2019 Agreements for the purposes of the Section 1404(a) analysis
without converting this motion to one for summary judgment. See Jiangsu Hongyuan Pharmaceutrical
(footnote continued on next page)

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Magistrate Judge Wilson recognized in his November 19 Report and

Recommendation (D.E. 31), the 2019 Agreements “govern” because they supersede

the Earlier Releases. (D.E. 31 at 18-19). This is because the 2019 Agreements

concern the same subject matter as the Earlier Releases: they grant RGP the right to

use footage of Plaintiffs and release claims associated with such footage. See, e.g.,

Hyuncheol Hwang v. Mirae Asset Sec. (USA), Inc., 165 A.D.3d 413, 413 (1st Dep’t 2018)

(it is well established that “a subsequent contract regarding the same matter will

supersede the prior contract”); Shehadeh v. Horizon Pharma USA, Inc., No. 20-cv-8107,

2021 WL 4176254, at *2 (S.D.N.Y. Sept. 14, 2021) (same); Goldman, Sachs & Co. v.

Golden Empire Sch. Fin. Auth., 764 F.3d 210, 215-16 (2d Cir. 2014) (forum selection

clause appearing in the most recent, superseding contract holds sway); accord Applied

Energetics, Inc. v. NewOak Capital Markets, LLC, 645 F.3d 522, 525-26 (2d Cir. 2011).

The forum selection clauses in the 2019 Agreements are valid, encompass

Plaintiffs’ claims, and are mandatory. Therefore, the clauses expressly require

Plaintiffs to litigate their claims in New York, and the forum non conveniens analysis

requires that this case be transferred.

Co., Ltd. v. DI Glob. Logistics, Inc., 159 F. Supp. 3d 1316, 1322 (S.D. Fla. 2016) (noting court may
consider matters outside the pleadings in ruling on a motion to dismiss based on forum non
conveniens); Jones v. Ponant USA LLC, No. 19-cv-3041, 2020 WL 3172778, at *2 (S.D.N.Y. June 15,
2020) (because Rule 12(d) applies only to motions filed under Rule 12(b)(6) and 12(c), a court may
consider additional evidence on a motion to dismiss for forum non conveniens).

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A. The forum-selection clause is enforceable.

1. The clause is valid.

Forum-selection clauses are presumptively valid and should be enforced

absent a clear showing that enforcement would be unfair or unreasonable. Pappas,

585 F. App’x at 965; MoistTech Corp. v. Sensortech Sys., Inc., No. 8:15-cv-00434, 2015

WL 3952341, at *5 (M.D. Fla. June 26, 2015) (citing Rucker v. Oasis Legal Finance,

L.L.C., 632 F.3d 1231, 1236 (11th Cir. 2011)). This is because by enforcing the

clause, the court is not seeking to limit a plaintiff’s usual right to choose a forum but

is enforcing the forum that the parties have already chosen. P&S Bus. Machs., Inc. v.

Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003).

The party seeking to overcome the presumption of validity bears the heavy

burden of showing that the clause’s enforcement would be unreasonable because: (1)

its formation was induced by fraud or overreaching, (2) the plaintiff would be

deprived of his/her day in court because of inconvenience or unfairness, (3) the

chosen law would deprive the plaintiff of a remedy, or (4) enforcement of the clause

would contravene a strong public policy. Xena Invs. Ltd. v. Magnum Fund Mgmt., 726

F.3d 1278, 1284-85 (11th Cir. 2013); Liles v. Ginn-La W. End, Ltd., 631 F.3d 1242,

1245 (11th Cir. 2011).

Plaintiffs cannot sustain this heavy burden. There are no allegations—and

none can be made—that the clause was entered into by fraud or overreaching. The

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clause was not hidden or ambiguous. It appeared in legible type in the same font and

size as the surrounding paragraphs of the one-page document.

Additionally, enforcement of the clause will not deprive Plaintiffs of their day

in court, nor will the chosen law deprive them of a remedy. It will simply transfer the

case to the parties’ agreed-upon forum. Any potential difficulty Plaintiffs may allege

in having to litigate in their selected forum cannot overcome the presumption of

validity. See, e.g., Cleveland v. Kerzner Int’l Resorts, Inc., 657 F. App’x 924, 927 (11th

Cir. 2016) (“generic averments of financial hardship and inconvenience” could not

show that litigating in the forum would be so “gravely difficult and inconvenient”

that plaintiffs would effectively be deprived of their day in court). This is especially

true here because New York law applies regardless of forum. There is simply no

unfairness in litigating a case applying New York law in a New York court.

Finally, there is no “strong” public policy that will be violated by requiring

Plaintiffs to litigate in their agreed-upon locale. Florida courts routinely enforce

forum-selection clauses, and public policy favors enforcement of contracts. See, e.g.,

In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989) (“enforcement of valid forum

selection clauses, bargained for by the parties, protects their legitimate expectations

and furthers vital interests of the justice system). At bottom, Plaintiffs cannot satisfy

their heavy burden to overcome the presumption of validity that accompanies forum-

selection clauses.

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2. The claims at issue are within the scope of the clause.

Because the clause is valid, this Court must next determine the scope of the

clause and whether it covers the claims asserted in this action. Landau v. Jaffa, No.

18-60772, 2018 WL 4778426, at *4-5 (S.D. Fla. July 19, 2018). To do so, the Court

must look to the plain language of the clause. Oribe Hair Care, LLC v. Canales, No. 17-

cv-20148, 2017 WL 2059582, at *3 (S.D. Fla. May 15, 2017) (citing Bahamas Sales

Assoc., 701 F.3d at 1340). Forum-selection clauses are broadly construed to ensure

resolution of all claims arising between the parties and to promote enforcement of

those clauses consistent with the parties’ intent.

Here, the forum-selection clause broadly encompasses the agreement “and any

dispute relating thereto.” (D.E. 24-1 at 5); (D.E. 24-2 at 4). Use of the term “relating

to” in a forum-selection clause is interpreted to include all causes of action arising

“directly or indirectly from the relationship evidenced by the contract.” Stiles v.

Bankers Healthcare Grp., Inc., 637 F. App’x 556, 560 (11th Cir. 2016); Slater v. Energy

Servs. Grp. Int’l, Inc., 634 F.3d 1326, 1330-31 (11th Cir. 2011) (suit asserting statutory

rights under Title VII was within scope of clause applicable to “all claims or causes

of actions relating to . . . the employment agreement”), abrogated on other grounds by

Atl. Marine Constr. Co. v. U.S. Dist. Court, 571 U.S. 49, 63 (2013); Smith v. Oasis Legal

Finance, LLC, No. 8:17-cv-2163, 2017 WL 4922271, at *3 (M.D. Fla. Oct. 31, 2017)

(Covington, J.) (finding claims “relate to” the agreement and were within scope of

forum-selection clause). So long as a party’s claims arise out of the relationship, the

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clause will be treated as within scope. Graham v. Rapid Auto Loans, LLC, No. 8:20-cv-

2758, 2021 WL 62483, at *2 (M.D. Fla. Jan. 7, 2021) (Covington, J.); Oribe Hair

Care, LLC, 2017 WL 2059582, at *4 (“regardless of how [plaintiff] would like to

characterize its Complaint, the crux of this action is the extent to which [defendant]

is permitted to use his own name, image and likeness in light of the agreements”).

By signing the 2019 Agreements, Plaintiffs released all claims which could be

asserted in connection with Defendants’ use of their name, voice, actions, activities

and likeness, including footage shot of them. Id. Plaintiffs’ Complaint alleges

Defendants exceeded the scope of the release and breached the agreements by using

this same footage in Tiger King 2. (D.E. 1 ¶¶ 41-43, 46). Naturally, Plaintiffs’ claims

describe conduct that substantively relates to the 2019 Agreements. As a result, the

clause applies to this action.

3. The clause is mandatory.

The Court must next decide whether the clause is mandatory or permissive.

Glob. Satellite Commc’n Co. v. Starmill U.K Ltd., 378 F.3d 1269, 1272 (11th Cir. 2004).

A permissive clause permits jurisdiction in a forum but does not prohibit litigation

elsewhere. Id. “A mandatory clause, in contrast, dictates an exclusive forum for

litigation under the contract.” Id. The clause need not include the word “exclusive.”

Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1270 (S.D. Fla. 2004). Rather, a

“hallmark of a mandatory clause is the use of the interpretative term ‘shall,’ which

prescribes a requirement.” Connectus, LLC v. Ampush Media, Inc., No. 8:15-cv-2778,

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2016 WL 761036 (M.D. Fla. Feb. 26, 2016) (Covington, J.). If a forum-selection

clause does not provide options, it is mandatory. Arthrez, Inc. v. Orthogen

Aktiengesellschaft, No. 2:05-cv-121, 2006 WL 8438756, at *3 (M.D. Fla. May 10,

2006) (Covington, J.).

Here, the forum-selection clause states:

This Release and any dispute relating thereto shall be interpreted,

(D.E. 24-1 at 5); (D.E. 24-2 at 4); (D.E. 24-4) (emphasis added). This clause does not

merely consent to jurisdiction in New York but requires it. The clause does not leave

open the possibility of any venue other than New York. Indeed, the term “shall,” is

included in a single sentence and modifies both the choice of law and forum portion

of the sentence, rendering the clause mandatory. Cf. Connectus, 2016 WL 761036, at

*2 (finding clause which used the term “shall” to address choice of law sentence but

did not use term in the separate forum sentence was permissive because the sentence

addressing forum did not contain express intention to limit jurisdiction); see also Glob.

Satellite Commc’n, 378 F.3d at 1272 (use of term “shall” was most reasonably

interpreted to mandate venue in designated forum); MoistTech Corp., 2015 WL

3952341, at *6 (same). Construing the clause as “permissive would render it

meaningless.” Fla. Polk Cnty., 170 F.3d at 1083 (finding clause vesting “jurisdiction

regarding the rights and obligations of either party under this Agreement and all

litigation resulting therefrom . . . in the . . . [circuit court of] Polk County, Florida” to

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be mandatory because otherwise it would be rendered meaningless). Accordingly,

the clause mandates all claims within the scope of the clause to be brought in New

York, not the Middle District of Florida.

B. The modified forum non conveniens analysis requires transfer.

Because there is a valid, enforceable, and mandatory forum-selection clause,

the court must next conduct a forum non conveniens analysis to determine whether

transfer is appropriate. Hindi, 2019 WL 4091425, at *2. Ordinarily, the doctrine

requires the movant to show: (1) an available adequate alternative forum, (2) public

and private factors favor transfer, and (3) the plaintiff could reinstate suit in the

alternative forum without undue inconvenience or prejudice. Schrenkel v. Lendus,

LLC, No. 2:18-cv-382, 2018 WL 2:18-cv-382, at *8 (M.D. Fla. Oct. 30, 2018).

This traditional analysis changes however, when, as here, a contract includes a

valid forum-selection clause representing “the parties’ agreement as to the most

proper forum.” Atl. Marine Constr., 571 U.S. at 63. This means that Plaintiffs’ choice

of forum has no weight and the “private interest factors [which govern the traditional

analysis] weigh entirely in favor of the preselected forum.” Pappas, 585 F. App’x at

967. Under this modified and restrictive forum non conveniens analysis, the burden

shifts to the non-movant to show that the public interest factors “overwhelmingly

disfavor” transfer to the agreed-upon forum. 3 See Atl. Marine Constr. Co., 571 U.S. at

3
The alternative adequate forum factor is still considered under the modified analysis, however,
there can be no dispute that the Southern District of New York is an available, adequate alternative
forum. The Southern District of New York can assert jurisdiction over the litigation and provides an
(footnote continued on next page)

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66; see also Ideal Protein of Am., Inc. v. Alllife Consulting, Inc., No. 8:19-cv-654, 2019 WL

2358832, at *6 (M.D. Fla. June 4, 2019) (Covington, J.). Those public interest factors

include “the administrative difficulties flowing from court congestion, the local

interest in having localized controversies decided at home, and the interest in having

the trial of a diversity case in a forum that is at home with the law.” Pappas, 585 F.

App’x at 967.

Because those factors “will rarely defeat” a transfer motion, “the practical

result is that forum-selection clauses should control except in unusual cases.” See Atl.

Marine Constr. Co., 571 U.S. at 62 (“when parties agree to a forum-selection clause,

they waive the right to challenge the preselected forum as inconvenient or less

convenient for themselves or their witnesses, or for their pursuit of the litigation.”);

St. Francis Holdings v. Cynosure, Inc., No. 8:20-cv-1101, 2020 WL 9601509, at *2

(M.D. Fla. Sept. 23, 2020); Smith, 2017 WL 4922271, *3 (“an enforceable forum-

selection clause carries near-determinative weight in [forum non conveniens]

analysis.”); Hindi, 2019 WL 409125, at *2 (existence of such forum-selection clause

“is essentially dispositive in the § 1404(a) or forum non conveniens analysis.”).

This is not an exceptional case. Plaintiffs agreed to designate their venue in

advance. Plaintiffs cannot now argue that the forum they agreed to is unfair. And the

public interest considerations all point to New York. The parties specifically agreed

that New York law would control, and the public has an interest in having these

adequate remedy at law, especially given the application of New York law to these claims. See, e.g.,
Leon v. Millon Air, Inc., 251 F.3 1305, 1311 (11th Cir. 2001).

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cases litigated in the “forum that is at home with the law that must govern the

action.” See, e.g., Rescoma, LLC v. Las Olas Co., Inc., No., 2017 WL4232568, at *5

(S.D. Fla. Sept. 22, 2017). Indeed, it is reasonable to assume judges sitting in New

York will be more current and knowledgeable about nuances in that state’s law.

There is no reason to burden this Court with application of another state’s law,

particularly when the Middle District has been recognized as “one of the most

congested Federal Court dockets in the nation.” MoistTech Corp., 2015 WL 3952341,

at *9; see also Aviation One of Fla., Inc. v. Airborne Ins. Consultants (PTY), Ltd., 722 F.

App’x 870, 885 (11th Cir. 2018) (recognizing District as “one of the busiest districts

in the United States.”). Finally, judicial economy weighs heavily in favor transfer

because the entire action falls within the scope of the clause.

Plaintiffs cannot meet their “heavy burden” of proving the public interest

factors “overwhelmingly disfavor” the forum they chose to litigate their claims.

Messmer v. Thor Motor Coach, Inc., No. 3:16-cv-1510, 2017 WL 933138, *4 (M.D. Fla.

Feb. 28, 2017) (transferring case to Northern District of Indiana per forum-selection

clause where plaintiff failed to show that it was “an unusual case in which [public-

interest] factors weigh so heavily against transfer so as to preclude it”). There is no

reason to ignore the parties’ pre-selected forum. The Court should enforce the clause

that Plaintiffs agreed to and transfer the case under 28 U.S.C. § 1404(a).

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II. Alternatively, Dismissal of Plaintiffs’ Breach of Contract Claim is

To state a claim for breach of contract under New York law, a plaintiff must

prove (1) the existence of a contract, (2) performance by the plaintiff, (3) breach of

the contract by defendant, and (4) resulting damages. RCN Telecom Svcs., Inc. v. 202

Centre Street Realty LLC, 156 F. App’x 349, 350-51 (2d Cir. 2005).

Plaintiffs’ breach of contract claim fails for several reasons. Plaintiffs cannot

and do not allege compensable damages, a critical element to any contract claim.

Moreover, the appearance releases from Plaintiffs were not required, thus inclusion

of the footage in Tiger King 2 does not breach the contract.

A. Plaintiffs have not alleged compensable damage.

Damages are “an essential element of a breach of contract claim.” Steadman v.

Zappin, No. 150591/2017, 2018 WL 1316789, at *3 (N.Y. Sup. Ct. 2018). Indeed,

without a clear showing of damages, there can be no claim for breach of contract. Id.

Dismissal is therefore required where, as here, Plaintiffs have not alleged and cannot

allege any legally compensable damages. First, the Complaint speculates that

Plaintiffs “will” be harmed, but such speculation does not replace the required

allegation of actual harm. Second, the type of harm Plaintiffs speculate about—

reputational injury—is not cognizable under a breach of contract theory.

1. Plaintiffs have not alleged an actual injury.

Plaintiffs do not plead that they have suffered any injury at all. The Complaint

speculates that Plaintiffs will be harmed if the use of the footage in Tiger King 2

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resembles that of Tiger King 1. See (D.E. 1 ¶ 43) (alleging the use of the footage in

Tiger King 2 “will cause the Baskins irreparable injury for which the Baskins have no

adequate remedy at law”) (emphasis added); see also ¶ 47 (alleging “there is a

substantial likelihood that the Baskins will suffer injury in the future”) (emphasis

added). The Complaint does not allege what type of harm may occur. And because

the Complaint lacks any allegation that Plaintiffs have suffered actual harm, it

likewise lacks any allegation that Defendants caused harm. Steadman, 2018 WL

1316789, at *3; Gordon v. Dino De Laurentiis Corp., 141 A.D.2d 435, 436 (1st Dep’t

1988) (dismissing complaint that did not establish “how the defendant’s alleged

breach caused plaintiffs any injury”). The Complaint must be dismissed on this basis

alone.

2. Reputational injury is not recoverable under breach of contract.

Although the Complaint itself does not specify what type of harm may result,

Plaintiffs’ accompanying injunction motion identifies damages to their reputation

and emotional harm that could flow from Defendants’ publication of the footage in

Tiger King 2. See (D.E. 1-4 at 22-23) (discussing vitriol allegedly occasioned by Tiger

King 1 and alleging use of the footage in Tiger King 2 will harm their reputations).

Even if Plaintiffs had alleged them in the Complaint, these strained claims of possible

reputational injuries are not recoverable in an action for breach of contract.

It is well settled under New York law that a plaintiff cannot recover damages

for loss of reputation or emotional and mental distress in a breach of contract action.

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D’Andrea v. Rafla-Demetrious, 3 F. Supp. 2d 239, 247 (E.D.N.Y. 1996) (“plaintiff

cannot recover any damages for emotional and mental distress, damage to his

reputation, or punitive damages under a breach of contract claim), aff’d, 146 F.3d 63

(2d Cir. 1998); AmTrust N. Am., Inc. v. KF&B, Inc., No. 17-cv-5340, 2020 WL

5503479, at *1 (S.D.N.Y. Sept. 11, 2020) (“a plaintiff cannot recover for damage to

reputation in a breach of contract action under New York law”); Premier Fla. Auto

Sales & Leasing, LLC v. Mercedes-Benz of Massapequa, LLC, No. 10-cv-4428, 2013 WL

2177785, at *5 (E.D.N.Y. May 20, 2013) (reputational damages “are not recoverable

in a breach of contract action under New York law.”); Rather v. CBS Corp., 68

A.D.3d 49, 55 (1st Dep’t 2009) (dismissing breach of contract claim where damages

alleged were lost business opportunities premised on reputational injury); MacArthur

Const. Corp. v. Coleman, 91 A.D.2d 906, 906 (1st Dep’t 1983) (dismissing breach of

contract claim seeking damages for loss of reputation because such claim is “not

actionable”); Fleming v. All State Ins. Co., 106 A.D.2d 426, 426 (2d Dep’t 1984) (“it is

beyond cavil that a plaintiff cannot, in an action for breach of contract, recover

damages for emotional distress”), aff’d, 66 N.Y.2d 838 (1985). Instead, damages for

reputation in a breach of contract claim are permitted only in exceptional cases

where a plaintiff alleges and proves “specific business opportunities lost as a result of

its diminished reputation.” Premier Fla. Auto Sales & Leasing, 2013 WL 2177785, at

*6.

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Plaintiffs do not allege anywhere in the Complaint that they lost a specific

business opportunity because of the alleged harm resulting from the breach. See (D.E.

1). They have not alleged this is an exceptional case warranting departure from the

general rule that precludes any type of reputational injury. Thus, they have not

adequately alleged damages (even if they had included in their Complaint

protestations about reputational harm found elsewhere in their filings).

The limitations on contract damages are especially relevant here, where the

First Amendment independently bars Plaintiffs from seeking “publication damages”

by asserting a non-publication cause of action. Any cause of action seeking damages

for reputational or emotional injury sustained because of publication, no matter how

labeled, is subject to all the constitutional burdens and defenses that govern claims

for defamation, including the well-established protection that a public figure must

show a false statement of fact was published with actual malice. Hustler Mag v.

Falwell, 485 U.S. 46, 52 (1988). Falwell stands for the now settled proposition that

courts may not permit plaintiffs, through creative pleading, to invoke other causes of

action as a vehicle to make “an end-run around First Amendment strictures.” Food

Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 522 (4th Cir. 1999) (plaintiff may

not recover for damages to reputation in non-defamation claims); see also Planned

Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 402 F. Supp. 3d 615, 633 (N.D.

Cal. 2019) (holding that the First Amendment barred plaintiffs from recovering

reputation damages arising from publication of videos); Smithfield Foods, Inc. v. United

Food and Com. Workers Int’l Union, 585 F. Supp. 2d 815, 817, 824 (E.D. Va. 2008)

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(finding lost profits resulting from public’s reaction to campaign were reputational in

nature, requiring plaintiff to satisfy defamation standards). Whether under New York

law or federal constitutional law, Plaintiffs’ failure to allege any recoverable loss

under a breach of contract claim requires dismissal.

B. Plaintiffs’ claim is based on an incorrect assumption that Defendants were

Even if Plaintiffs had adequately pleaded damages, Plaintiffs simply cannot

allege any contractual breach. The Complaint asserts that the Earlier Releases

limited Defendants’ use of the footage filmed of Plaintiffs and Big Cat Rescue, and

that the alleged “unauthorized use” of the footage violates the releases. (D.E. 1 ¶¶ 39,

42-43). The Earlier Releases, however, are permissive. They do not expressly

prohibit Defendants from using the footage in any manner.

To be sure, Plaintiffs’ “authorization” for use of their footage was never

necessary. Under both Florida and New York law consent is unnecessary so long as

a person’s name or likeness is used for a non-commercial purpose. See, e.g., Loft v.

Fuller, 408 So. 2d 619, 621 (Fla. 4th DCA 1981) (requiring consent of people

portrayed in film “would have an unconstitutional ‘chilling’ effect upon the First

Amendment”); Weil v. Johnson, No. 119431/02, 2002 WL 31972157, at *4 (N.Y.

Sup. Ct. Sept. 27, 2002) (finding releases were not required to portray subjects of a

documentary); Man v. Warner Bros., Inc., 317 F. Supp. 50, 52 (S.D.N.Y. 1970)

(consent is not needed to show plaintiff’s name and likeness in film). And use of a

person’s name or likeness in a docuseries does not qualify as a commercial purpose.

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See, e.g., Joseph Burstyn v. Wilson, 343 U.S. 495, 501-02 (1952) (noting motion

pictures, like books, are protected, expressive works despite significant revenue

generated); Tyne v. Time Warner Entm’t Co., L.P., 204 F. Supp. 2d 1338, 1342 (M.D.

Fla. 2002) (film and accompanying promotional aspects of film did not constitute a

commercial purpose);Tyne v. Time Warner Entm’t Co., L.P., 901 So. 2d 802, 810 (Fla.

2005) (publications, including motion pictures, do not qualify as a commercial

purpose as used in Florida misappropriation statute).

Because most participants have little to no understanding that they do not

have the right to control the use of their image or likeness in a First Amendment-

protected work, like a docuseries, appearance releases serve the important function of

ensuring the participants and producers are on the same page. Indeed, while they are

not required, procuring appearance releases is a common practice among

filmmakers, especially for those that operate in multiple states. This is because “the

potential for lawsuits is tremendous” and releases are “intended to serve as a level of

protection to the producers and owners” of the film or docuseries. Klapper v.

Graziano, 970 N.Y.S.2d 355, 359 (N.Y. Sup. Ct. 2013); see also Robert C. Sanchez,

Unauthorized Appropriation of an Individual’s Name or Likeness, Fla. Bar J. July/August

1998, at 57 (explaining that the “easiest way” to avoid problems with image

misappropriation is simply to “require all agencies and photographers to provide

copies of necessary model releases and consents”). In other words, in exchange for

“the chance for publicity,” appearance releases merely give advance express consent

to relieve a potential defendant of potential claims that a filmmaker had no right to

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tell the story about a participant. Coates v. Newhall Land & Farming, 191 Cal. App. 3d

1, 7 (1987); Klapper, 970 N.Y.S.2d at 361 (noting the releasor recognizes “the

possibility that the outcome may not be [] as expected.”).

Here, the Earlier Releases did just that. Plaintiffs gave express consent to use

of their name and likeness and, in turn, relieved Defendants of potential claims.

Critically, there is no provision in the Earlier Releases that precludes any use of the

footage. Had Plaintiffs intended to restrict use of the footage, they could have done

so. See, e.g., Burnett v. Warner Bros. Pictures, Inc., 113 A.D.2d 710, 712-13 (1st Dep’t

1985). In Burnett, the plaintiffs had assigned all of their rights in a play later adapted

into a movie and a subsequent spinoff television series. Id. The plaintiffs argued the

assignment did not include sequel rights, but the court affirmed dismissal of the

complaint concluding “had the plaintiff intended to retain certain rights, specific

clauses to that effect should have been included in the agreement.” Id.; see also

Greenfield v. Philles Records, Inc., 780 N.E.2d 166, 172 (N.Y. 2002) (finding broad

grant of rights “includes the right to use the work in any manner . . . unless those

rights are specifically limited by the terms of the contract”). If Plaintiffs are correct

that the Earlier Releases do not apply to Tiger King 2, it simply means that

Defendants have not been relieved of potential claims. It does not, however, mean

that Defendants’ use of the footage in Tiger King 2 was wrongful. That Plaintiffs did

not condition their interviews on the Earlier Releases underscores this reality.

Indeed, Plaintiffs allege that RGP began filming before they entered into appearance

releases. (D.E. 1 ¶¶22-23).

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In sum, consent is not necessary to allow someone to do something she or he

already has the right to do. Because Defendants had the right to film and portray

Plaintiffs for any non-commercial purpose, and the Earlier Releases placed no

restrictions on that right, Plaintiffs have no potential cause of action against

Defendants based on their appearance in Tiger King 2.

III. Plaintiffs’ Declaratory Judgment Claim Should Also be Dismissed.

Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 (“DJA”),

Plaintiffs seek declaratory relief from the Court regarding the interpretation of the

Earlier Releases. (D.E. 1 at 19). A declaratory judgment request under the DJA

remains discretionary with the court, and is not the right of a litigant as a matter of

course. Amusement Indus., Inc v. Stern, 693 F. Supp. 2d 301, 311 (S.D.N.Y. 2010);

Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (DJA “confers a discretion on the

courts rather than an absolute right upon the litigant.”). In deciding whether to

entertain a declaratory judgment request, courts consider whether the judgment will

serve a useful purpose in clarifying or settling legal issues, as well as whether there is

a better or more effective remedy available. Amusement Indus., 693 F. Supp. 2d at

311. In this case, Plaintiffs’ declaratory judgment request does not satisfy this criteria.

The request serves no useful purpose because the answers Plaintiffs seek

merely duplicate the issues relevant to the breach of contract claim. Compare (D.E. 1

¶¶ 45-47 and ¶¶ 39-43). Although the existence of another adequate remedy does not

preclude a judgment for declaratory relief, “the fact that a lawsuit has been filed that

will settle the issues for which declaratory judgment is sought suggests that the

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declaratory judgment will serve ‘no useful purpose.’” Amusement Indus., 693 F. Supp.

2d at 311; see also Intellectual Capital Partner v. Inst. Credit Partners LLC, No. 08-cv-

10580, 2009 WL 1974392, at *6 (S.D.N.Y. July 8, 2009) (“declaratory relief would

serve no useful purpose as the legal issues will be resolved by litigation of the breach

of contract claim”). Indeed, because the Court will analyze the parties’ rights and

obligations under the Earlier Releases in connection with Plaintiffs’ breach of

contract claim, “a declaratory judgment on the same issues would be superflous.”

Dolphin Direct Equity Partners, LP v. Interactive Motorsports & Enmt’t Corp., No. 08-cv-

1558, 2009 WL 577916, at *11 (S.D.N.Y. Mar. 2, 2009); Intellectual Capital Partner,

2009 WL 1974392, at *6 (any uncertainty over the scope and enforceability of

contract “will be dispelled in litigation of the breach of contract claim.”). For this

same reason there is a better or more effective remedy than a declaratory judgment:

resolution of the contract claim. Amusement Indus., Inc., 693 F. Supp. 2d at 312; Miller

v. Wells Fargo Bank, N.A., 994 F. Supp. 2d 542 (S.D.N.Y. 2014). The declaratory

relief sought is redundant, does not serve a useful purpose and does not provide the

best or most effective remedy. The relief is unnecessary and should not be

entertained.

CONCLUSION

This action belongs in the forum the parties expressly agreed to, New York.

As a result, the case should be dismissed or transferred to the Southern District of

New York under Section 1404(a). Alternatively, should the Court reach the merits of

Plaintiffs’ claims, dismissal is required. Plaintiffs have not alleged any compensable

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damages, and Defendants were not required to obtain new releases to use the footage

of Plaintiffs in Tiger King 2. Finally, Plaintiffs’ declaratory relief claim is redundant

and serves no useful purpose. The Complaint should be dismissed.

LOCAL RULE 3.01(g) CERTIFICATION

Pursuant to Local Rule 3.01(g), counsel for Defendants certifies that she spoke

with counsel for Plaintiffs and that Plaintiffs oppose the relief requested herein.

Respectfully submitted,

/s/Rachel E. Fugate
Rachel E. Fugate
Florida Bar No. 0144029
Deanna K. Shullman
Florida Bar No. 514462
Giselle M. Girones
Florida Bar No. 124373
Shullman Fugate PLLC
100 South Ashley Drive, Suite 600
Tampa, FL 33602
Telephone: (813) 935-5098
[email protected]
[email protected]
[email protected]

Attorneys for Defendants

Of Counsel:

Russell A. Smith
SmithDehn LLP
654 San Juan Avenue,
Los Angeles, CA 90291
(917) 239-5047
[email protected]

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 24, 2021, I electronically filed the

foregoing with the Clerk of the Court by using the CM/ECF system.

/s/ Rachel E. Fugate

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