Académique Documents
Professionnel Documents
Culture Documents
, 2013)
11-cv-324
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
WISCONSIN
BACKGROUND
The alleged facts are laid out fully in the
court's March 16, 2012, opinion. (Dkt. #51.)
The court provides only a brief summary
here. Bogie alleged that defendants
collaborated to produce and distribute a
documentary entitled, Joan Rivers: A Piece of
Work. The documentary consists of various
segments, one of which includes a
performance by Rivers in February 2009 at
the Lake of the Torches Casino located in Lac
Du Flambeau, Oneida County, Wisconsin
("Segment 12").
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misappropriate
Bogie's
image
under
subsection (b) because the use of her image in
the documentary was incidental and not a
substantial part of defendants' commercial
purpose. Since Bogie could not state a claim
pursuant to Wis. Stat. 995.50 under any set
of facts, the court dismissed the action with
prejudice. The Seventh Circuit later affirmed
the dismissal of the subsection (a) claim on
the same basis, and affirmed dismissal of the
subsection (b) claim on an alternative basis,
finding that the use of Bogie's image fell
within the newsworthiness and incidental use
exceptions. Bogie, 705 F.3d at 611, 616.
OPINION
I. Defendants' Motion for Attorney's
Fees
A federal court sitting in diversity must
look to the law of the forum state to evaluate a
claim for attorney's fees. Alyeska Pipeline
Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
259 n.31 (1975) (recognizing that in diversity
cases, state statutes and case law apply to
questions of attorney fees); Champion Parts,
Inc. v. Oppenheimer, 878 F.2d 1003, 1006
(7th Cir. 1989) (applying state law to evaluate
a claim for attorney's fees in a diversity case).
Wisconsin generally recognizes the American
Rule, under which parties must bear the cost
of their own attorney's fees. Kolupar v. Wilde
Pontiac Cadillac, Inc., 2007 WI 98, 16, 303
Wis. 2d 258, 735 N.W.2d 93. However, the
American Rule is a default rule that may be
overcome by statute or contractual provisions
providing for
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attorney's fees. Klemm v. Am. Transmission
Co., LLC, 2011 WI 37, 42, 333 Wis. 2d 580,
798 N.W.2d 223.
Wisconsin's Right of Privacy law contains
one such fee-shifting provision, which states
in pertinent part:
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802.05(3)(a).
Plaintiff
argues
that
defendants' motion for attorney's fees should
be denied because they did not comply with
this twenty-one-day "safe harbor" provision,
denying Bogie and her counsel an opportunity
to withdraw the complaint. (Pl.'s Opp. (dkt
#56) 4.) Plaintiff also contends that "this
court has no basis to invoke [its] inherent
power" to sanction her, because plaintiff did
not act "in bad faith, vexatiously, wantonly, or
for oppressive reasons." (Id. at 7.) Finally,
plaintiff argues that, even if the court
determines that it has the authority to
sanction plaintiff and did not violate
802.05, this court should not award
defendants attorney's fees because plaintiff's
claim has a reasonable basis in law and
equity. (Id. at 9.)
A. Application
802.05
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of
Wis.
Stat.
Plaintiff's
primary
response
to
defendants' motion is that it is not properly
before the court under 802.05. This
argument appears to confound the issues of
sanctions for pursuing frivolous litigation
under 802.05 with an award of statutory
attorney's fees under 995.50. As explained
below, 802.05 is certainly instructive in
considering an award of fees under 995.50,
particularly in determining whether a claim
or argument is
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1058-59. In the instant motion, however,
defendants are not asking this court to award
attorney's fees pursuant to Rule 11, Wis. Stat.
802.05, or this court's inherent authority.
Rather, defendants are seeking fees pursuant
to the fee-shifting statutory provision in
995.50.
B. Frivolous Claims: 995.50(6)
1. Standard
Sections 802.05 and 995.50(6) are
substantially the same with two key
differences: first, 802.05 requires advanced
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The court must identify the facts known
to plaintiff at the time commencement of the
action. Jandrt, 227 Wis. 2d at 550. At that
time, she and Attorney Seidl knew or should
have known the following facts:
1) Defendants collaborated to
produce and distribute a
documentary entitled Joan
Rivers: A Piece of Work.
2) This documentary included a
performance
by
defendant
Rivers at the Lake of the
Torches Casino in Lac Du
Flambeau,
Wisconsin.
3)
Bogie
attended
the
performance.
4) After the performance, Bogie
and
Rivers
interacted
1
backstage.
5) Defendants included the
interaction between Bogie and
Rivers in the documentary.
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basis supporting the complaint is shown to be
groundless during discovery." Munson v.
Milwaukee Bd. of Sch. Dir., 969 F.2d 266, 271
(7th Cir. 1992). The court also must examine
each claim independently to determine
whether it has a basis in law and fact. See
Jandrt, 227 Wis. 2d at 552 ("[T]he inclusion
of one sufficient and adequately investigated
claim does not permit counsel to file
unsubstantiated claims as riders.").
Finally, as plaintiff also correctly points
out, the court resolves all doubts in favor of
finding the claim non-frivolous. (Pl.'s Opp'n
(dkt. #56) 9 (citing Stern, 185 Wis. 2d at
235).)
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that the plaintiff's action under subsection
(2)(a) became frivolous when defendants
made the documentary itself part of this
record. At that point, Attorney Seidl and
Bogie knew or should have known that the
facts alleged could not satisfy the elements of
a 995.50(2)(a) claim.
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documentary or simply relied on Bogie's
version of Segment 12. Given that defendants
included a copy of the documentary as an
exhibit to their motion to dismiss the original
complaint, Attorney Seidl certainly should
have reviewed the documentary himself at
that time.
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invades a plaintiff's privacy under subsection
(2)(b) "only when the publicity is given for the
purpose of appropriating to the defendant's
benefit the commercial or other values
associated with the name or the likeness" of
the plaintiff. Restatement (Second) of Torts,
652C, cmt. d; see Hirsch v. S.C. Johnson &
Son, Inc., 90 Wis. 2d 379, N.W.2d 129 (1979).
Without facts to support the claim that
plaintiff's
appearance
substantially
contributed to defendants' commercial gain,
plaintiff's subsection (2)(b) claim against
defendants was also devoid of arguable basis
in fact, and, therefore, frivolous under
995.50(2)(b).
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III. Plaintiff's Motion for Attorney's
Fees
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CONLEY
-------Notes:
A more complete description of the
encounter between Bogie and Rivers is laid
out in the background section of this opinion
and in the court's opinion on the motion to
dismiss.
1.
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802.05(3)(b)(2); however, that section only
applies if a party's claims "are warranted by
existing law or by a nonfrivolous argument
for the extension, modification, or reversal of
existing law or the establishment of new law."
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