iCase: Doc 7 Filed: 03/31/15 Page: 1 of 23 PAGEID 46 IN THE COMMON PLEAS COURT OF MIAMI COUNTY, OHIO GENERAL DIVISION JOHN ROE CASE NO. DAVID E. BEITZEL 22 NORTH SHORT 5T. TROY, OHIO 45373 JANE ROE . DAVID E. BEITZEL COMPLAINT FOR MONEY DAMAGES 22 NORTH SHORT ST. AN ACCOUNTING AND EQUITABLE TROY, OHIO 45373 RELIEF DEMAND ENDORSED PLAINTIFFS VS. AMAZON.COM, INC. 1918 3TH AVE. SEATTLE, WA 93101-1244 AND BARNES 8. NOBLE, INC. 122 5TH AVE. NEW YORK, NY 100116605 AND APPLE, mc. 1 INFINITE LOOP STOP CUPERTINO, CA 95014-2083 BEITZEL LAW OFFICE (Case: Doc 7 Filed: 03/31/15 Page: 2 of 23 PAGEID 47 AND JANE DOE AKA LACEY NOONAN DEFENDANTS Now come the Plaintiffs, by and through counsel, and for their Complaint against the Defendants aver as follows: FIRST CLAIM 1. Plaintiffs are residents of Miami County, Ohio, are domiciled in Ohio and all events given rise to the claims for legal liability herein arise in this venue. The Plaintiffs? identities are not being disclosed as a matter of public record herein as their privacy interests substantially outweigh the presumption of open judicial proceedings. Piaintiffs will be filing motions for protective orders herein to protect their privacy from further public disclosure in the context of what has been done to them by the Defendants already. The practice of proceeding under a pseudonym is well established in Ohio particularly when the actions of Defendants have already resulted in substantial damage to Plaintiffs and would result in more privacy violations and harassment by adding to the negative publicity already caused by the actions of the Defendants. Appropriate protective orders will allow the Defendants to conduct discovery, prepare a defense, if any, and know who their accusers are. 2. The Defendants, Amazon.com, lnc., Barnes Noble, Inc. and Apple, inc. (hereinafter, the "Corporate Defendants?), are all legal entities transacting business in the State of Ohio and/or have committed tortious acts in the State of Ohio against the Plaintiffs. The Defendant, Jane Doe, is an individual whose true identity is unknown to the Plaintiffs although she transects business under the pseudonym, Lacey Noonan. This Court has personal jurisdiction over all Defendants. 3. The Defendant, Jane Doe, sometime on or before the calendar year 2014 wrote and caused to be published a book entitled A Gronking to Remember. The Corporate Defendants, offered the book for saie for in the State of Ohio on their respective websites. The book has and is being offered for sale in both digital formats (eg. Nook, Kindle, iBooks) as well as in paperback. 4. The cover of the book contains a photograph of the Plaintiffs which was taken as part of their engagement journey leading toward their wedding. The photograph was appropriated by the Defendants for commercial gain without the permission of the Plaintiffs nor with the permission of any lawful copyright holder. The Plaintiffs were not compensated for the use of their image on the cover of these books. The Plaintiffs did not place the BEITZEL LAW OFFICE gCase: Doc 7 Filed: 03/31/15 Page: 3 of 23 PAGEID 48 photograph on the internet for expropriation as the color photograph on the cover of these books. 5. The subject matter of the book, A Gronking to Remember, is less than tasteful and is offensive. The use of the Plaintiffs image has held them up to ridicule and embarrassment. This outrageous connection has been further aggravated when the book, with the Plaintiff?s image, has been reproduced in the media nationwide. The book has been shown as a source of ribald humor on The Tonight Show and Jimmy Kimmel Live as well as being displayed and read before the press at media day for the Super Bowl. 6. The photograph of the Plaintiffs contained on the cover of this book constitutes their persona to which the Plaintiffs own a right of publicity for commercial purposes. Plaintiffs never gave written or any other form of consent to the appropriation of their persona. The use of the Plaintiff?s persona by the Defendants for commercial purposes constitutes a violation of Chapter 2741 of the Ohio Revised Code. 7. As a result of Defendants? wrongful appropriation of Plaintiffs? persona for commercial purposes, the Plaintiffs are entitled to the recovery of actual damages, including any profits derived from and attributabie to such unauthorized use. in the alternative, the Plaintiffs are entitled to statutory damages in an amount of $10,000.00. 8. in order to elect remedies as set forth in the preceding paragraph, the Plaintiffs are entitled to a full and complete accounting from each ofthe Defendants. 9. Plaintiffs are entitled to the recovery of punitive damages. 10. In addition, the Plaintiffs are entitled to the recovery of their attorney fees, courts costs and reasonable expenses associated with the pursuit of this civil action. The Defendants knew or should have known that they did not have the right to use the Plaintiffs? persona for commercial purposes entitling the Plaintiffs to the recovery of treble damages. 11. The Plaintiffs are also entitled to injunctive relief to stop the wrongful use of their persona resulting from the commercial activity of the Defendants both now and in the future. Plaintiffs are further entitled to an Order of lrnpoundment of all paperback versions of the book so they might be destroyed under the supervision of the Plaintiffs. SECOND CLAIM 12. Plaintiffs re?allege as if fully rewritten herein all allegations set forth hereinabove. 13. The acts of the Defendants constitute an invasion of privacy as that tort is recognized in the State of Ohio. BEITZEL LAW OFFICE base: Doc 7 Filed: 03/31/15 Page: 4 of 23 PAGEID 49 14. The invasion of the Plaintiffs? privacy was done with a reckless disregard for the rights and dignity ofthe Plaintiff: 15. As a proximate cause of the acts of the Defendants, the Plaintiffs are entitled to the recovery of compensatory damages, punitive damages and the recovery of their attorney fees. THIRD CLAIM 16. Plaintiffs re~allege as if fully re?written herein all allegations set forth hereinabove. 17. The acts of the Defendants constitute a violation of Restatement 2d Torts 652 thereby entitling the Plaintiffs to the recovery of compensatory and punitive damages. WHEREFORE, Plaintiffs pray forjudgment against the Defendants as follows: 1. Compensatory damages in an amount exceeding $25,000 and/or for statutory damages of $10,000; 2. A complete and exhaustive accounting from each Defendant of all monetary transactions arising from commercial activity wrongfully using the Plaintiffs? persona; 3. Punitive damages in an amount sufficient to deter each Defendant from engaging in this behavior in the future; 4. Recovery of all Plaintiffs attorney fees incurred on an hourly basis in the prosecution of this civil action, court costs and reasonable expenses associated with this civil action; 5. Treble damages; 6. lnjunctive relief to stop the wrongful use of Plaintfiffs? persona resulting from the commercial activity of the Defendants both now and in the future as well as an Order of impoundment of all paperback versions of the book so they might be destroyed under the supervision of the Plaintiffs. BEITZEL LAW OFFICE gCase: Doc 7 Filed: 03/31/15 Page: 5 of 23 PAGEID 50 David E. Beitzel (0018224) Trial Attorney BEITZEL LAW 22 North Short St. Troy, Ohio 45373 Telephone: 937?440-9220 Facsimile: 888-379?7765 Email: Attorney for Plaintiffs Shelee M. Busch (0091954) 22 North Short St. Troy, Ohio 45373 Telephone: 937-829?6697 Email: SheleeBusch@gmail.com Attorney for Plaintiffs JURY DEMAND Now come the Plaintiffs and hereby demand a trial by jury for all issues herein so triable. David E. Beitzel BEITZEL LAW OFFICE gCase: Doc 7 Filed: 03/31/15 Page: 6 of 23 PAGEID 51 INSTRUCTIONS FOR SERVICE TO THE CLERK: Please issue service of summons and a copy of this Complaint to each Defendant by certified mail, return receipt request, at the address for each Defendant set forth in the caption of this Complaint. David E. Beitzel BEITZEL LAW OFFICE Case: Doc 7 Filed: 03/31/15 Page: 7 of 23 PAGEID 52 EXHIBIT Case: 3215-CV-0011UMR Doc 7 Filed: 03/31/15 Page;?8?of 23 PAGEID 53 Court of Common Pleas, Miami County, Troy, Ohio SUMMONS 0N COMPLAINT Rule 4 1970 Ohio Rules of Civil Procedure JOHN ROE CIO DAVID BEITZEL 22 NORTH SHORT STREET TROY, OH 45373 Vs. AMONCOM INC 1918 8TH AVE SEATTLE, WA 98101 APPLE INC 1 INFINITE LOOP STOP 36-TX CUPERTINO, CA 95014 To the above named Defendant(s): Case No. 15 CV 00090 JANE ROE CIO DAVID BEITZEL 22 NORTH SHORT STREET TROY, OH 45373 Piai'mr??m BARNES NOBLE INC 122 5TH AVE NEW YORK, NY 10011 JANE DOE AKA LACEY NOONAN Defendant(s) You are hereby summoned that a complaint (a copy of which is hereto attached and made a part hereof) has been ?led against you in this court by the plainti?ts) named herein. You are required to serve upon the Plainti?is) attorney, or upon the Plaintif?s) if heishe has no attorney of record, a copy of your answer to the complaint within 28 days after service of this summons upon you, exclusive of the day of service. Said answer must be ?led with this court within three days after service on Plaintiff?s Attorney. The name and address of the PlaintiffIs) Attorney is as follows: DAVID E. BEITZEL 22 N. SHORT STREET TROY, OH 45373 (93 7)-440-9220 If you fail to appear and defend,judgment by default will be taken against you for the relief demanded in the complaint. Date: February 24, 2015 Jan A. Mottinger -- Clerk of Courts 01. 5am Deputy Case: Doc 7 Filed: 03/31/15 Page: 9 of 23 PAGEID 54 EXHIBIT Case: Doc 7 Filed: 03/31/15 Page: 19 of 23 PAGEID 55 UNITED posmr. SERVICE. Date Produced: 0310912015 MIAMI COUNTY CLERK OF COURTS - OMWQN PLEAS: The following is the delivery information gerti?ed MailTM Item number 7199 9991 7031 9698 2357. Our records indicate that this item was delivered on 0310212015 at 08:31 am. in CUPERTINO, CA 95014. The scanned image of the recipient information is provided below. 4- mm,? . Signature of Recipient: 41mm .5 g. . Address of Recipient: .. .. .--. . Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post of?ce or Postal Service representative. Sincerely. United States Postal Service The customer reference number shown below is not validated or endorsed by the United States Postal Service. it is solely for customer use. Customer Reference Number: 4276683 3 Case: Doc 7 Filed: 03/31/15 Page: 11 of 23 PAGEID 56 EXHIBIT Case: Doc 7 Filed: 03/31/15 Page: 12 of 23 PAGEID 57 UNITED POSTAL SERVICE. Date Produced: 03l09/2015 MIAMI COUNTY CLERK OF COURTS - COMMON PLEAS: The following is the delivery informationlfor SgthElMe?i?ger 7199 9991 7031 9698 2333. Our records indicate that this item was delivered on 031l02f2015 at 11:57 am. in SEATTLE, WA 96101. The scanned image of the recipient information is provided below. Address of Recipient L. -. lfT? 'Mchu - Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance. please contact your local post of?ce or Postal Service representative. Sincerely, United States Postal Service The customer reference number shown below is not validated or endorsed by the United States Postal Service. It is solely for customer use. Customer Reference Number: 4276663 ?l Case: Doc 7 Filed: 03/31/15 Page: 13 of 23 PAGEID 58 EXHIBIT Case: Doc 7 Filed: 03/31/15 Page: 14 of 23 PAGEID 59 UNITED POSTAL SERVICE. Date Produced: MIAMI COUNTY CLERK OF COURTS - COMMON PLEAS: The following is the delivery informationlfor SgthElMe?i?ger 7199 9991 7031 9698 2333. Our records indicate that this item was delivered on 031l02f2015 at 11:57 am. in SEATTLE, WA 96191. The scanned image of the recipient information is provided below. Address of Recipient L. -. lfT? 'Mchu - Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance. please contact your local post of?ce or Postal Service representative. Sincerely, United States Postal Service The customer reference number shown below is not validated or endorsed by the United States Postal Service. It is solely for customer use. Customer Reference Number: 4276663 ?l Case: Doc 7 Filed: 03/31/15 Page: 15 of 23 PAGEID 60 EXHIBIT C%lose %Open %Save %Print LCI CD 10 ll 12 Add Record Delete Record Long Display Forms Reorder Dockets Costs Parties Image Service Summary No EVents Case Disposition No Motions Global Cost Dismiss File Tracking Options System Notification In Custody Dooket ID Display View Document File Request (Interface) Sea%rch Search Criteria 15 CV 00090 Docket Entry Images Participant Display Option Search Results Docket Date 3/10/2015 3/10/2015 3/10/2015 2/25/2015 2/25/2015 2/25/2015 2/25/2015 2/24/2015 2/24/2015 All Dockets Exclude Non Referenc %Clear ROE, JOHN et al vs. AMAZON.COH INC et a1 Begin Date End Date Display Dockets e5cription ETURN RECEIPT 15-90?3 ISSUED T0 APPLE INC, IGNED FOR BY ANTONIO '9 Cm ETURN RECEIPT 15-90-2 ISSUED TO BARNES AND CMG SortDescenoing Amt Owed! Amt Dism/Credit OELE INC, SIGNED FOR BY 3. ON 03/02/2015 ETURN RECEIPT 15-90?1 ISSUED TO AMAZON.COM SIGNED FOR BY ALPHIA PATTERSON ON 03/02/2015 POSTAGE FEES FOR 15-90 1 THRU 3 SUMMONS, COPY OF TO APPLE INC 1 INFINITE LOOP STOP 35-TX 95014 BY CERTIFIED MAIL 15?90?3 91 7199 9991 7031 9698 2357 SUMMONS, COPY OF TO BARNES NOBLE INC 122 5TH AVE NEW YORK, NY 10011 BY CERTIFIED MAIL 15-90?2 91 7199 9991 T031 9698 2340 SUMMONS, COPY OF TO AMAZON.COM INC 1913 3TH AVE CERTIFIED MAIL 15?90?1 91 2199 9991 7031 9693 2333 SUMMONS, ISSUED SPECIAL PROJECTS ACCOUNT CIVIL PETITIONS, OTHER THAN DOMESTIC RELATIONS Receipt: 101461 Date: $5-34 A PIECE 16.02 90-00 Amount Due Se; .. Case: Doc 7 Filed: 03/31/15 Page: 16 of 23 PAGEID 61 2/24f2015 2/24/2015 2/24/2015 2/24/2015 02/24f2015 DEPOSIT Receipt: 101461 Date: 02/24f2015 FEES FOR COMPUTERIZATION OF OFFICE Receipt: 101461 Date: 02/24/2015 FEES PAID PURSUANT TO ORC AND LEGAL RESEARCH FEES Receipt: 101461 Date: 02f24f2015 COMPLAINT FILED Receipt: 101461 Date: 02/24/2015 147.50 10.00 21.50 25.00 Case: Doc 7 Filed: 03/31/15 Page: 17 of 23 PAGEID 62 Case: Doc 7 Filed: 03/31/15 Page: 18 of 23 PAGEID 63 EXHIBIT Case: Doc 7 Filed: 03/31/15 Page: 19 of 23 PAGEID 64 COURT OF COMMON PLEAS MIAMI COUNTY, OHIO ROE, JOHN, et a1., Plaintiffs, Case No. Case No. lS-cv?00090 -vs- Judge Christopher Gee AMAZONCOM, INC., et al., Defendants. NOTICE OF FILING OF NOTICE OF REMOVAL Defendants Amazon.com, Inc. (?Amazon?), Apple Inc. (?Apple?), and Barnes Noble, Inc. (?Barnes Noble?) (collectively, the ?Defendants?) hereby give notice of removal of the above?captioned action from the Court of Common Pleas of Miami County, Ohio, to the United States District Court for the Southern District of Ohio, Western Division. In support thereof, the Defendants respectfully state that on March 27, 2015, the Defendants ?led a Notice of Removal in the District Court. A copy of that notice is attached as Exhibit 1. WHEREFORE, the undersigned Defendants remove this action from the Court of Common Pleas to the District Court and respectfully request that this Court take no further action in this case. Case: Doc 7 Filed: 03/31/15 Page: 20 of 23 PAGEID 65 Respectfully submitted, y/ 46 bad @1111 W. Zeiger (012%703f Trial Att?rney/xr/Lne May?) aniel P. Mead (0083854) ZEIGER, TIGGES LITTLE LLP 3500 Huntington Center 41 South High Street Columbus, Ohio 43215 (614) 365?9900 (Fax) (614) 365?7900 zeiger@litohio.com Attorneys for Apple Inc. 4505.044}; 6110111 F. Marsh (0065345), "1661 Attorney (m 1,444 HAHN LOESER PARKS LLP 65 East State Street Columbus, Ohio 43215 (614)233-5102 (Fax) (614) 233?5107 marsh@hahnlaw. com Attorney for Amazon.com, Inc. 0W. WM Aneca gm) SQUIRE PATTON BOGGS far/7 4?6 2000 Huntington Center 41 South High Street Columbus, OH 43215 (614) 365-2700 (Fax) (614) 365-2499 aneca.lasley@squirepb.com Attorney for Barnes Noble, Inc. Case: Doc 7 Filed: 03/31/15 Page: 21 of 23 PAGEID 66 CERTIFICATE OF SERVICE The undersigned hereby certi?es that a copy of the foregoing has been served via email and regular United States mail, postage prepaid, this 27th day of March, 2015, upon the following: David E. Beitzel, Esq., Beitzel Law Of?ce 22 North Short Street Troy, OH 45373 Attorneys for Plaintiffs John Roe and Jane Roe %w aebuJ?/q Mlfo W. Zeiger (3131/13 7?95), Trial Attorney If Case: Doc 7 Filed: 03/31/15 Page: 22 of 23 PAGEID 67 EXHIBIT Case: Doc 7 Filed: 03/31/15 Page: 23 of 23 PAGEID 68 SHUKAT ARROW HAFER WEBER 8: HERBSMAN, L..L..P. AT LAW 494 EIGHTH AVENUE SIXTH FLOOR NEW YORK. NEW 10001 ALLEN ARROW PETER s. SHUKAT (1970-2014) JEFFREY HAFER NI WEBER TELEPHONE (212) 245.4530 JONAS HERBSMAN KERRY SMITH JASON FINESTONE or COUNSEL MICHAEL FRISCH ELLIOT A EESNIK wnrrER's E-MAIL: CODY A. BROWN dorothy@musiclaw com JUDITH A March 27, 2015 James J. Pastore Esq. Debevoise Plimpton, LLP 919 Third Avenue New York NY 10022 Re: John Roe, et. al v. Amazon.com Inc, ct. al, 15 Civ. 90 (Court of Common Pleas, Miami County, Troy, Ohio, Feb. 24, 2015) Dear Mr Pastore: Pursuant to our discussion, I am providing this letter in connection with a notice of removal that I understand is being ?led by certain of the defendants in the above- captioned matter. This letter con?rms that: 1. I represent Defendant Jane Doe, a/k/a ?Lacey Noonan,? in connection with the above-captioned matter. 2. Defendant Doe is not a citizen of Ohio. 3. Defendant Doe has not been served with the Complaint in this matter, nor has Defendant Doe waived service. I have, however offered to Plaintiffs? counsel to make available Defendant Doe?s contact information. 4. Defendant Doe consents to removal of this action to federal court. Please do not hesitate to contact me if you have any further questions. truly yo Dorothy We Esq. DMW: jp