Civil practice – Discovery rule – Social media posts

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Where plaintiffs alleging that the defendants improperly used images of them to promote their nightclub, the three-year statute of limitations applicable to the plaintiffs’ state-law claims should not be tolled under the discovery rule, as the plaintiffs have not satisfied their burden of proving their lack of knowledge of the Facebook posts at issue was objectively reasonable.

“This case arises from allegations that defendant, Baywatch Inc. d/b/a Club Alex’s Adult Entertainment (‘Club Alex’ or ‘defendant’), improperly used images of the plaintiffs, purportedly well-known professional models, to promote their night club, Club Alex.

“Pending before the Court is defendant’s motion for summary judgment (Docket No. 71) and plaintiffs’ motion for summary judgment (Docket No. 75). For the reasons that follow, defendant’s motion will be allowed, in part, and plaintiffs’ motion will be denied, in part. Both motions will be held for further consideration, in part. …

“The four images in dispute (in which the plaintiffs appear in scanty attire) were posted to the Facebook page of Club Alex between August, 2013 and November, 2015. …

“Massachusetts courts have yet to decide whether and to what extent the discovery rule applies to Facebook posts. …

“Judicial restraint counsels against determining whether the Facebook posts at issue were ‘inherently unknowable.’ Nevertheless, even assuming, arguendo, that they were, plaintiffs have failed to carry their burden of demonstrating ‘both the actual lack of causal knowledge and the objective reasonableness of that lack of knowledge.’ …

“Plaintiffs have averred that they were either unaware of the Facebook posts at issue until their attorney brought the posts to their attention or could not recall how they became aware of the posts. Defendant has proffered unrebutted evidence that they have filed a combined total of 365 lawsuits concerning the four images in dispute and that all six plaintiffs have been involved with those suits since at least March, 2016. Furthermore, as defendant notes, plaintiffs are able to look for images of themselves through most search engines.

“Plaintiffs have the burden of demonstrating that their lack of knowledge was objectively reasonable but have produced no evidence to explain why reasonable diligence would not have led to discovery of the Facebook posts. They recite the general fact that Facebook’s platform contains millions of advertisers but the fact that the allegedly misappropriated posts occurred in the vast sea of the internet is not enough to demonstrate the objective reasonableness of a lack of knowledge. That logic applied to all content on social media platforms would vastly expand the scope of the discovery rule.

“In light of plaintiffs’ proclivity for litigating over the specific images in dispute and their ability to conduct simple searches, plaintiffs have not satisfied their burden of proving their lack of knowledge was objectively reasonable. … Accordingly, the statute of limitations was not tolled beyond the date of publication and Counts III-XII, inclusive, are time-barred.”

Lanham Act

“Defendant also asserts a statute of limitations defense to plaintiffs’ Lanham Act claims. …

“First, the parties do not dispute, and this Court holds, that should laches be applicable rather than the most analogous statute of limitations, the relevant limitations period would be drawn from the Massachusetts Consumer Protection Act, M.G.L.c. 93A (‘Chapter 93A’). … Actions brought under that provision must be filed within four years of accrual. M.G.L.c. 260, §5A.

“Laches requires demonstrating: (1) a lack of diligence by the non-moving party, and (2) prejudice to the party asserting the defense. …

“Because the issue is not fully briefed, the Court will direct plaintiffs to submit a supplemental memorandum, not to exceed 10 pages, as to why laches should not bar their claims, to be submitted on or before December 15, 2023. …”

Davalos, et al. v. Baywatch Inc. (Lawyers Weekly No. 02-553-23) (11 pages) (Gorton, J.) (Civil Action No. 21-11075-NMG) (Dec. 8, 2023).

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