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Electra v. F.M.J. Restaurant, Inc.

United States District Court, N.D. Ohio, Eastern Division

August 9, 2019

CARMEN ELECTRA, et al., PLAINTIFFS,
v.
F.M.J. RESTAURANT, INC., et al., DEFENDANTS.

          MEMORANDUM OPINION AND ORDER

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.

         Before the Court is the motion of defendants F.M.J. Restaurant, Inc. and Royal Restaurant, Inc. (collectively, “defendants”) to sever or, in the alternative, for separate trials. (Doc. No. 28 [“Mot.”].) Plaintiffs filed an opposition brief (Doc. No. 30 [“Opp'n”]) and defendants filed a reply (Doc. No. 31 [“Reply”]). For the reasons set forth herein, the motion is denied.

         I. DEFENDANTS' MOTION

         In this case, each of the four plaintiffs alleges that she is a “well-known model, actor, and businesswoman, ” (Doc. No. 5, First Amended Complaint (“FAC”), ¶¶ 16-19), whose image has been “misappropriat[ed], misuse[d], and alter[ed] . . . by [d]efendants in order to promote their gentlemen's clubs, Diamond Lodge, Diamond Royale, and Diamond Club[.]” (Id. ¶ 1.) They allege that defendants F.M.J. Restaurant, Inc., Royal Restaurant, Inc., and Renato6, LTD[1] “share a website . . . that contains links to separate web pages for each respective club[, ]” and that defendants “use their websites and online social media marketing platforms to market and advertise [the three clubs] as having ‘World Class Adult Entertainment” with “Stunning Entertainers.'” (Id. ¶¶ 3-4.)

         In their motion to sever, defendants argue that each plaintiff's claim is separate and that the claims were improperly joined because they “do not arise out of the same transaction or occurrence and the questions of fact are not common to all plaintiffs as required by Fed.R.Civ.P. 20.” (Mot. at 378.[2]) They further argue that “neither settlement nor judicial economy would be facilitated by allowing plaintiffs to join their claims together in this action.” (Id.) Instead, defendants assert that “prejudice would result to [them] by allowing all of the plaintiffs to continue with their claims in one action.” (Id.) Defendants ask that the plaintiffs' claims be severed or, in the alternative, that each plaintiff's claim be tried separately to a separate jury, and that an order be issued requiring mandatory attendance of each plaintiff at all court events and hearings.[3] (Id. at 384.)

         In support of their motion, defendants rely upon cases from the Northern District of Ohio that apply the “logical relationship” test to determine “whether the issues of law and fact raised by the claims are largely the same and whether substantially the same evidence would support or refute all claims.” (Mot. at 382 (citing cases).) Defendants cite other opinions by this court for the proposition that “‘[m]ere factual similarity between claims is not enough to show that claims arise from the same transaction or occurrence.'” (Id. at 382-83 (citing cases).) Finally, defendants point to a case from the Southern District of Florida where defendants' motion to sever eighteen (18) of the nineteen (19) plaintiffs was granted upon findings that “‘[t]he fact-specific nature of plaintiffs' claims precludes any conclusion that judicial economy would be served by joinder and that each plaintiff has different factual allegations to support her claim.'” (Id. at 383 (citing Gibson v. Cent. Fla. Liquors, Inc., No. 1:16-cv-61152-UU, slip op. at 3 (S.D. Fla. June 23, 2016) (see Doc. No. 28-1).)

         In opposition, although plaintiffs concede that the three defendants “are distinct corporate entities with separate liability to each [p]laintiff, ” (Opp'n at 395), they claim that defendants “coordinated their marketing efforts and used the same marketing consultant to acquire and post” their images. (Id.) Plaintiffs argue that their causes of action “arise from [] the same course of conduct perpetrated by [d]efendants, which raises numerous common issues of law and fact.” (Id.) Thus, in plaintiffs' view, joinder of these plaintiffs is not only permitted by the federal rules but is encouraged as a means of serving judicial economy while not prejudicing defendants. (Id. at 395- 96.)

         In reply, defendants “concede that they [the moving defendants] acted with each other in light of the fact that they have a common owner, ” (Reply at 422), but they resist any allegation that they acted in concert with Renato6, LTD and claim that pursuing all the claims against all three defendants in one suit “would be highly prejudicial . . . [because] Renato6's posting of images has no commonality with the facts surrounding the images posted by [the moving defendants].” (Id. at 423.) They also argue that plaintiffs have failed to recognize, or to respond to, the question of prejudice to the defendants because “[t]he jury may punish defendants improperly due to the number of plaintiffs or may award more to one plaintiff based on the damage evidence presented in regard to a different plaintiff.” (Id.) Finally, defendants argue that the Court should take direction from the management of asbestos cases, where, although discovery may be consolidated, [4] the claims are tried separately and given different case numbers. (Id. at 424.)

         II. APPLICABLE LAW

         “Where parties have been misjoined, a district court may drop a party or sever a claim against a party, but may not dismiss the action on that basis.” Roberts. v. Doe, No. 16-2082, 2017 WL 3224655, at *2 (6th Cir. Feb. 28, 2017) (citing Fed.R.Civ.P. 21 and cases). The rules do not define misjoinder; therefore, courts typically look to the preconditions for permissive joinder set forth in Fed.R.Civ.P. 20(a) to evaluate whether severance may be warranted. Under Rule 20, parties and/or claims may be joined in one action if “(A) they assert [or have asserted against them] any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs [or all defendants] will arise in the action.” Fed.R.Civ.P. 20(a)(1), (2).

The ‘same transaction or occurrence' requirement is a flexible concept, but the ultimate determination is whether there are enough factual occurrences to ensure that joinder is fair. Mere factual similarity between claims is not enough to show that claims arise from the same transaction or occurrence.

Burgos v. Bob Evans Farms, Inc., No. 2:11-55-DCR, 2011 WL 4528476, at *1 (E.D. Ky. Sept. 28, 2011) (quotation marks and citation omitted).

         III. DISCUSSION

         The gravamen of plaintiffs' complaint, especially as relevant to the instant motion, can be ...


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