STANDARD OF REVIEW

Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the evidence of the
nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This court’s function is not to weigh
the evidence and determine the truth of the matter, but to determine whether there is a genuine issue
for trial. A party who bears the burden of proof on a particular issue, however, may not rest on its
pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine
issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In
considering a motion for summary judgment, this court is not required to scour the record in search
of evidence to defeat the motion; the nonmoving party must identify with reasonable particularity
the evidence upon which that party relies. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th

Cir. 2003); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). Finally, the

evidence relied upon must be competent evidence of a type otherwise admissible at trial. Stinnett
v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002).
ANALYSIS
As an initial matter, pursuant to Local Rule 56.1(b)(3)(A), in order to dispute the moving
party’s factual assertion, the nonmoving party must provide specific citations to the parts of the
record that support the asserted dispute. See Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000)

(“(T]he nonmovant must cite specific evidentiary materials justifying the denial.”). Failure to cite



dispute as to whether defendants’ conduct was willful. Under Illinois law, punitive damages are
disfavored and are to be awarded only upon a showing of gross fraud, breach of trust, malice, or

willfulness. Roboserve, Inc. v. Kato Kagaku Co, Ltd., 78 F.3d 266, 275 (7th Cir. 1996). To justify

punitive damages, defendants’ conduct must involve outrage similar to that found in a crime, and
plaintiff must introduce some evidence of intent to injure. Id. at 276.

As explained above, plaintiffhas offered no evidence of defendants’ intent to injure plaintiff.
Defendants did not know that plaintiff is gay and did not know of the circumstances of her
professional life. In addition, itis undisputed that immediately upon notice of the lawsuit, which was
the first time defendants learned plaintiff is gay and that the advertisement was offensive to her,
defendants discontinued using plaintiffs image in its publicity and removed any image of plaintiff
from their website by deleting the “Sucking the Life” website link from the archives of the “Old Tour
Dates” link. (P1.’s Resp. to Defs.’ Stmt. of Facts {J 23, 26.)

Plaintiffpoints to defendants’ past exploitations of homosexuality as evidence of willfulness,
Assuming such evidence is admissible, which it is probably not, this court fails to see how, in light
of the undisputed fact that Templeton did not know plaintiff is gay when he took the photograph and
when the advertisement was run, this tends to show that defendants willfully used plaintiff's
photograph for commercial gain. Here, the evidence shows that although, when viewing the
evidence in the light most favorable to plaintiff, Templeton tricked plaintiff by saying he was Tony
Hawk, such misrepresentation was undertaken simply to photograph plaintiff and her friend. In
Illinois, “deceit alone cannot support a punitive damage award.” Roboserve, 78 F.3d at 276 (quoting
Home Sav. & Loan Ass’n of Joliet v. Schneider, 108 Ill. 2d 277, 284, 483 N.E.2d 1225, 1228 (Ill.

1985)). Plaintiff offers no evidence of any intent on Templeton’s part in June 2002 to trick plaintiff


(P1.’s Resp. to Defs.’ Stmt. of Facts {{] 10-11, 18.) Thus, when the advertisement ran in February
2003, defendants did not know of the fact that plaintiffis gay. Further, no reasonable jury could find
that the advertisement portrayed plaintiff as gay. The only possible indicia of sexual orientation is
the phrase “I am gay in a happy way not a sexual one” in the mailing address at the bottom of the
advertisement. When viewed as a whole, this ad in no way reveals that plaintiff is gay. In fact, it
is undisputed that defendants could not have revealed this. They did not know, at the time they
published the advertisement with plaintiff's photograph, that plaintiff is gay. At most, the
advertisement disclosed what plaintiff looked like on that particular day in June 2002, including that
she had a cigarette in or near her mouth. Of course, “there is no liability for giving further publicity
to what the plaintiff [herself] leaves open to the public eye.” Restatement (Second) of Torts § 652D
cmt. b (1977). The only way defendants can be held liable here is if their advertisement discloses
plaintiff's sexual orientation, and it does not. In fact, even after the February 2003 advertisement
was published, plaintiff has never had any conversation regarding her sexual orientation with any
teacher, or her principal, or her vice principal. Moreover, defendants used the same address with the
same language on two other advertisements. (Defs.’ Exs., Exs. 2-3 to Ex. F.) Consequently,
defendants were not attempting to single plaintiff out by disclosing her sexual orientation. The
address, whether in good taste or not, was used on at least two other ads.

Plaintiff apparently confuses the public disclosure of private facts branch of the invasion of
privacy tort with the other branches of the tort. The cases plaintiff cites in support of her claim
involve defamation/false light and misappropriate of identity cases. (Pl.’s Resp. at 8-10.) Plaintiff

does not cite to any public disclosure of private facts case. Because no material facts remain in



to the record, which plaintiff has done numerous times, results in the fact being admitted.” In
addition, this court cannot consider additional facts offered by the nonmoving party that are not
supported by specific references to the record? L.R. 56.1(b)(3)(B). Finally, this court has
disregarded any statement that are speculative (e.g., defendants’ paragraph twenty-four) or
conclusory (e.g., first sentence of defendants’ paragraph fourteen).
I. Public Disclosure of Private Facts

With respect to plaintiff's invasion of privacy, public disclosure of private facts claim, “[o]ne
who gives publicity to a matter concerning the private life of another is subject to liability to the
other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly
offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Villalovos v.

Sundance Assocs., Inc., No. 01 C 8468, 2003 WL 115243, at *3 (N.D. Ill. Jan. 13, 2003) (quoting

Restatement (Second) of Torts § 652D (1977)); Johnson v. K Mart Corp., 311 Ill. App. 34 573, 579,
723 N.E.2d 1192, 1197 (1st Dist. 2000). Here, this court agrees with plaintiff that her sexual
orientation is not a legitimate public concern and disclosure could be highly offensive. However,
this court finds that material facts are not in dispute as to whether defendants actually disclosed that
plaintiff is gay.

It is undisputed that Templeton did not know of plaintiff’s sexual orientation when he took

her photograph and, in fact, did not learn plaintiff is gay until it was alleged in plaintiffs complaint.

2 For example, plaintiff fails to provide a citation to the record in response to the
following paragraphs of defendants’ statement of undisputed material facts: 12, 13, 18
(particularly last sentence), 23, 25, 26, 27, and 28. These paragraphs are thus deemed admitted.

3 In particular, plaintiff does not cite to any record in support of paragraph 16 of her
statement of additional facts.



Furthermore, it is undisputed that Templeton did not know plaintiff’s sexual orientation when
he took her photograph, and defendants did not know plaintiff is gay when they published the
February 2003 advertisement. In fact, defendants did not realize plaintiff is gay until they learned
such fact was alleged in plaintiffs complaint. (Pl.’s Resp. to Defs.’ Stmt. of Facts {J 10-11, 18.)
Additionally, plaintiff offers no evidence that defendants, prior to using plaintiffs photograph in the
advertisement, knew anything about plaintiff, particularly her station in life. Even if the
advertisement portrayed plaintiff as gay—which it does not-defendants had no knowledge that using
plaintiff's photograph would cause her any harm at all, let alone severe emotional distress.
Defendants did not know plaintiff was a teacher and therefore could not have known that using
plaintiffs photograph would harm her in her job.

Finally, plaintiff has not introduced evidence demonstrating that she suffered severe
emotional distress. The only evidence supported by citations to the record is that plaintiff lost ten
to fifteen pounds lasting over one year and had a flare up of eczema causing her upper lip to be bright
red and swollen and her eyelids to be swollen and red for several weeks. Without trivializing these,
no reasonable jury could find that such weight loss and flare up of eczema was “so severe that no

reasonable person could be expected to endure it.” Graham v. Commonwealth Edison Co., 318 Ill.

App. 3d 736, 745, 742 N.E.2d 858, 866 (1st Dist. 2000). As such, summary judgment must be
granted on this count.
I. Punitive Damages

Although summary judgment has been granted on counts II and II, plaintiff seeks punitive
damages on count I. Under 765 ILCS § 1075/40, punitive damages may be awarded if defendants

willfully violated the Illinois Right of Publicity Act. This court finds that no material facts are in


4

Minute Ordet*Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge James F. Holderman Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 C 5076 DATE August 5, 2004
CASE DOE vs. TEMPLETON et al
TITLE

[In the following box (a) indicate the party filing the motion, ¢g,, plaintiff, defendant, 3rd party plaintiff, and (b) state bri
of the motion being presented. ]

iefly the nature

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer briefdue____

(4) Oo Ruling/Hearingon___—ssetfor_—_at

(5) im Status hearing[held/continued to] [set for/re-set for] on setfor at.

(6) oO Pretriat conference[held/continued to] [set for/re-set for]on__—ssetfor__—at__—.

(7) Oo Trial[set for/re-set for] on __at

(8) oOo (Bench/Jury trial] [Hearing] held/continued to___at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (CLocal Rule 41.1 CFRCP41(a)(1) O FRCP41(a)(2).

(0) [Other docket entry} | Pursuant to Memorandum Opinion and Order entered this day, defendants’

motion for partial summary judgment is granted. Summary judgment is granted as to counts

and with respect to plaintiffs claim for punitive damages in count I. All previously set dates shall stand.

Wand III

dj) oO (For further detail see order (on reverse side offattached to) the original minute order.]

No notices required, advised in open court.

No notices required, number of natices

Notices mailed by judge's staff.

vat
van

AUG 0 6 2004

Notified counsel by telephone. “hte fockaed

Docketing to mail notices.

Mail AO 450 form.

ne

t- Copy to judge/magistrate judge.

courtroom 193g Hy 9- CMY NOL

Js a deputy's
initials

——_——
TMDateltime vecéived in
central Clerk’s Office

‘naiting deputy initials



in order to use her photograph in future advertising, i.e., for future financial gain. Then, after using
the photograph of plaintiff and her friend, without any knowledge that plaintiff is gay, defendants
removed plaintiff's image from the print ads and Toy Machine’s website immediately upon learning
of the lawsuit. Plaintiff cites to no cases in support of the imposition of punitive damages under
circumstances similar to the one at hand. Plaintiff merely cites to four cases that set forth the general
standards for willfulness and punitive damages. (Pl.’s Resp. at 11-12.) No reasonable jury could
find that defendants’ conduct was willful under the circumstances present here. Consequently,
summary judgment is appropriate on the issue of punitive damages in count I.
CONCLUSION

As explained above, defendants’ motion for summary judgment is granted. Summary

judgment is granted as to counts IJ and III and with respect to plaintiffs claim for punitive damages

in count I. The parties are strongly encouraged to discus settlement. All previously set dates stand.

ENTER:

FU berrer

| /!AMES F, HOLDERMAN
United States District Judge

DATE: August 5, 2004

10


dispute as to whether the fact that plaintiff is gay was disclosed and defendants are entitled to
judgment as a matter of law, summary judgment on this count is appropriate.
Il. Intentional Infliction of Emotional Distress

Under Illinois law, to prevail on her IIED claim, plaintiff must prove that: (1) defendants’
conduct was extreme and outrageous; (2) defendants either intended that their conduct should inflict
severe emotional distress, or knew there was a high probability that their conduct would cause severe
emotional distress; and (3) defendants’ conduct in fact caused severe emotional distress. Anast v.

Commonwealth Apartments, 956 F. Supp. 792, 802 (N.D. Ill. 1997); Johnson, 311 Il. App. 3d at

580, 723 N.E.2d at 1197. To survive summary judgment, plaintiff must demonstrate that material
facts are in dispute as to each of these elements. Viewing the evidence in the light most favorable
to plaintiff, this court finds that material facts are not in dispute.

Even accepting all of plaintiff’s facts properly supported by the record, as a matter of law,
defendants’ conduct was not extreme and outrageous. As the Illinois Supreme Court has held:

“Tt has not been enough that the defendant has acted with an intent which is tortious

or even criminal, or that he has intended to inflict emotional distress, or even that his

conduct has been characterized by “malice,” or a degree of aggravation which would

entitle the plaintiff to punitive damages for another tort. Liability has been found

only where the conduct has been so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency * * *.”
Public Fin. Corp. v. Davis, 66 Ill. 2d 85, 90, 360 N.E.2d 765, 767 (Ill. 1976) (quoting Restatement
(Second) of Torts sec. 46, cmt. D (1965)). In reviewing the advertisement (Defs.’ Exs., Ex. 1 to Ex.
F), as explained above, this court concludes that no reasonable jury could find that it, in and ofitself,

revealed that plaintiff is gay. Even if such an inference could be made, plaintiff has proffered no

evidence that defendants’ conduct went beyond all possible bounds of decency.



Plaintiff, who, in January 2003, was twenty-two years old and a seventh grade science teacher
in Naperville, is gay. However, at that time, plaintiff had not disclosed her sexual orientation to her
employer, colleagues, students, or students’ parents. In late February 2003, when a student brought
the advertisement to plaintiff at school, plaintiff first learned that the photograph Templeton took
of her in June 2002 was used in the Toy Machine promotion. After finding out the advertisement,
which plaintiff believes portrays her as gay, was published, plaintiff lost ten to fifteen pounds, which
lasted over one year, and suffered a flare up of her eczema, which lasted several weeks. Shortly after
the advertisement was published in Thrasher magazine, plaintiff spoke with the principal and vice
principal of her school regarding the advertisement. Plaintiff did not discuss her sexual orientation
with her principal or vice principal nor has plaintiff had any conversation about her sexual
orientation with any teachers, her principal, or vice principal.

Approximately five months later, plaintiff filed this lawsuit against defendants. This was the
first time defendants became aware of plaintiffs sexual orientation. Templeton did not know
plaintiff is gay when he took her photograph in June 2002. Upon being notified by a Chicago
Tribune reporter of the lawsuit and plaintiff's allegations, Todd Swank, president of Tum Yeto,
instructed his staff to discontinue any use of plaintiff's image. In addition, Tum Yeto’s website
administrator, Jordan Snodgrass, removed any image of plaintiff from the Toymachine.com website
by deleting the “Sucking the Life” website link from the archives of the “Old Tour Dates” link.

Plaintiff's claims against defendants all center on this February 2003 advertisement and
defendants’ use of her photograph. Relevant to the counts II and III, plaintiff claims that the ad

portrayed her as gay and thus disclosed to the public her sexual orientation.



their photograph. Plaintiff alleges that Templeton told the two friends that he was Tony Hawk,
another professional skateboarder. Plaintiff and her friend gave Templeton permission to take their
photograph. Templeton subsequently took plaintiff and her friend’s photograph.

Then, in February 2003, Toy Machine used the photo of plaintiff and her friend that
Templeton took in June 2002 in an advertisement publicizing the release of a videotape entitled
“Sucking the Life,” which documents the then-recent tour of the Toy Machine skateboarding team.
This advertisement with plaintiff's photograph was published in the February 2003 edition of
Thrasher magazine. The advertisement with the photograph of plaintiff and her friend contains
several lines of text promoting the videotape and names the skateboarders on the tour. At the bottom
of the advertisement, those interested in ordering the video are instructed to “Write to: ] am gay in
ahappy way not a sexual one” at a Huntington Beach, California address. (Defs.’ Exs., Ex. 1 to Ex.
F.) In addition to the advertisement with plaintiffs photograph, Toy Machine published two other
advertisements promoting the “Sucking the Life” video. These ads, published in the March 2003
edition of Transworld Skateboarding Magazine and in the March/April 2003 edition of Document
Skateboard Magazine, contained language virtually identical’ to the February 2003 edition in
Thrasher magazine but used different photographs from the skateboarding tour. In other words, the
two advertisements published after February 2003 are practically identical to the February 2003
advertisement but for the photographs used. Both the March 2003 and March/April 2003 editions
of the promotion contained the same address, including the “I am gay in a happy way not a sexual

one” language, as the advertisement with plaintiff's photograph.

' The only difference in the text appears to be the release dates. The February 2003
advertisement states: “Hoping for release by March 2003” (Defs.’ Exs., Ex. 1 to Ex. F) while the
other two state: “New release date: January 2003” (Defs.’ Exs., Exs. 2-3 to Ex. F).

2



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
) Dob
Jane Doe, )
) AUG 0 6 2004
Plaintiff, )
)
v. ) No. 03 C 5076
)
Ed Templeton and Tum Yeto, Inc., d/b/a Toy )
Machine Bloodsucking Skateboard Co. )
)
Defendants. )
)

MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, District Judge:

On October 15, 2003, plaintiff Jane Doe (“Doe”) filed a four-count amended complaint
against defendants Ed Templeton (“Templeton”) and Tum Yeto, Inc., d/b/a Toy Machine
Bloodsucking Skateboard Co. (“Tum Yeto” or “Toy Machine”) alleging violations of the Illinois
Right of Publicity Act, invasion of privacy by giving publicity to private life, intentional infliction
of emotional distress (“ITED”), and negligence. Defendants, on May 6, 2004, moved, pursuant to
Federal Rule of Civil Procedure 56, for summary judgment on count II (publicity given to private
life) and count III (HED) and plaintiffs punitive damages claims. For the reasons set forth below,
defendants’ motion is granted.

STATEMENT OF FACTS
In June 2002, at a skateboarding event in Naperville, Illinois, Templeton, a professional

skateboarder, approached plaintiff and her friend, who were nearby, and asked them ifhe could take