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S.E. v. Chmerkovskiy

United States District Court, M.D. Tennessee, Nashville Division

November 17, 2016

S.E., a minor by Next Friend Stephanie C. Mitchell, and STEPHANIE C. MITCHELL, Plaintiffs,
v.
VALENTIN CHMERKOVSKIY, Defendants.

          MEMORANDUM & ORDER

          ALETA A. TRAUGER, United States District Judge

         Pending before the court is a Motion to Dismiss filed by defendant Valentin Chmerkovskiy (Docket No. 28), to which the plaintiffs have filed a Response in opposition (Docket No. 38) along with an Amended Complaint (Docket No. 39), and Mr. Chmerkovskiy has filed a Reply (Docket No. 40). For the reasons discussed herein, the motion will be denied

         BACKGROUND AND PROCEDURAL HISTORY

         This action was filed on January 29, 2016. (Docket No. 1.) The Complaint alleges that plaintiff S.E. is a minor citizen who was diagnosed at birth with Down Syndrome, a chromosomal disorder characterized by a combination of birth defects, including mental and physical impairments and characteristic facial and physical features. (Id. at ¶¶ 3, 13.) The Complaint also alleges that individuals with Down Syndrome have a significantly higher incidence of problems with the endocrine system (the set of glands that include the thyroid, adrenal, and pituitary glands) than the general population. (Id.) Plaintiff Ms. Mitchell is S.E.'s mother, and both plaintiffs are residents of Springfield in Robertson County, Tennessee. (Id. at ¶¶ 3-4.) The Complaint further alleges that Mr. Chmerkovskiy - a celebrity professional dancer, best known for his television appearances on “Dancing with the Stars” - is a resident of California, that defendant Michael Smail is a resident of Illinois, and that defendant CBS Corporation is based in New York, establishing that diversity jurisdiction is appropriate as to all defendants. (Id. at ¶¶ 5-7.) The Complaint then alleges the following facts as a basis for this action:

• On June 1, 2008, when she was eight years old, S.E. attended a baseball game at Hershel Greer Stadium in Nashville, Tennessee.
• Mr. Smail also attended the same baseball game and, unbeknownst to S.E. or anyone accompanying her that day, Mr. Smail took an unauthorized photograph of S.E. while she was standing outside the stadium near the concession stand (the “Photograph”).[1]
• On or about June 1, 2008, Mr. Smail posted the Photograph on his Flickr account, with the sub-heading, “Everything that's wrong with America.”
• On or about February 2, 2014, a meme of the Photograph with the statement “BUSTED” emblazoned across S.E.'s image in bold letters was posted on the internet website www.cbsnews.com, owned by CBS Corporation.
• On January 11, 2016, Mr. Chmerkovskiy posted on his public Facebook page another meme of the Photograph with the caption “Letting your kid become obese should be considered child abuse, ” and this image has been viewed by more than a quarter million of Mr. Chmerkovskiy's followers.
• Also on January 11, 2016, Mr. Chmerkovsky posted on his Facebook page the following statement regarding the Photograph: “I am truly sorry for the lack of sensitivity . . . but on some level I have to agree. . . . You're handicapping your kid, and they're defenseless.
They don't know better, that's why you're there . . . anyway I'm just a childless preacher, but here's some food for thought. #nopunintended.”
• On or about January 14, 2016, S.E. became aware of the existence of the Photograph when her older sister discovered the Photograph on Mr. Chmerkovskiy's Facebook page.
• Ms. Mitchell sent several emails to Mr. Chmerkovskiy requesting that he remove the Photograph from his Facebook page, but he refused to respond.
• As a result, the plaintiffs have suffered severe mental anguish and emotional distress, including humiliation, embarrassment, and fear, which ...

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