United States District Court, M.D. Tennessee, Nashville Division
S.E., a minor by Next Friend Stephanie C. Mitchell, and STEPHANIE C. MITCHELL, Plaintiffs,
VALENTIN CHMERKOVSKIY, Defendants.
MEMORANDUM & ORDER
A. TRAUGER, United States District Judge
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
AND PROCEDURAL HISTORY
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
• 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
• On or about June 1, 2008, Mr. Smail posted the
Photograph on his Flickr account, with the
sub-heading, “Everything that's wrong with
• 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.
• 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
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 ...