ORDER GRANTING DEFENDANT’S SPECIAL MOTION TO STRIKE PLAINTIFF’S CLAIMS OF MISAPPROPRIATION OF LIKENESS AND INVASION OF PRIVACY
This mаtter comes before the Court on Defendant Dog Eat Dog Films, Inc’s.
1
Introduction and Background
Ken Aronson commenced this action against Defendant asserting that the inclusion of a song and video in Michael Moore’s documentary film, Sicko, without Aronson’s authorization, infringes Plaintiffs exclusive copyright to his video and song. Dkt. 1 pg. 4-5. Plaintiff also asserts two state law claims: Invasion of Privacy — Defendant’s unauthorized distribution of Plaintiffs home video gave publicity to a matter concerning Plaintiffs private life in violation of Plaintiffs right to privacy; and Misappropriation of Likeness — Defendant’s unauthorized distribution of Plaintiffs home video to the public exposed Plaintiffs likeness without his consent and for pecuniary gain. Dkt. 1 pg. 5-6.
Plaintiffs claims for invasion of privacy and misappropriation of likeness arise from the inclusion of Plaintiffs voice and image in Sicko, a documentary film about the contemporary healthcare crisis in America. Sicko explores this issue, in part, by examining the stories of several individual patients who have received health care in the United States and contrasting them with stories of Americans who have received healthcare abroad.
One of the short vignettes in Sicko tells the story of Eric Turnbow’s experience being treated in a United Kingdom hospital. Mr. Turnbow’s experiеnce was recorded on home video footage taken by Plaintiff Aronson on a trip Turnbow and Aronson took to England in 1997. Aron-son asserts that the resulting footage of the shared trip is his property. Nonetheless, in 2006, in response to a request from Defendant for healthcare stories in preparation of the documentary on the healthcare crisis, Mr. Turnbow sent a copy of the video to Defendant. Mr. Turnbow signed a Standard Materials Release granting Defendant permission to use the footage in connection with the film, Sicko
Just over a minute of footage from the video Mr. Turnbow released to Defendant appears in Sicko. The documentary shows Mr. Turnbow injuring his shoulder while attempting to walk across London’s Abbey Road on his hands. Fifty-two of those seconds show Mr. Turnbow’s injury and treatment of the injury, while the remaining nineteen seconds provide the context for Mr. Turnbow’s visit to the United Kingdom.
Within the seventy-one seconds of Mr. Turnbow’s footage in
Sicko,
sixteen seconds contain Plaintiffs voice and image. These occur in three separate clips. The first clip depicting Aronson is in the context for Mr. Turnbow’s visit to London. In a four second clip, Aronson and Turn-bow are shown traveling together and singing a song. Plaintiffs voice is heard
The Defendant released the documentary Sicko in the United States on or about June 22, 2007. The film was nominated in 2008 for an Academy Award in the “Best Documentary” category.
On Aрril 27, 2010, Aronson filed the instant action for copyright infringement, •invasion of privacy and misappropriation of likeness. It is these latter two state law claims that Defendant seeks dismissal pursuant to the Washington Anti-SLAPP Act.
Washington Anti-SLAPP Act
The Washington legislature has observed that strategic lawsuits against public participation (or SLAPP suits) are “filed against individuals or organizations on a substantive issue of some public interest or social significance,” and “are designed to intimidate the exercise of First Amendment rights.” Laws of 2002, ch. 232, § 1. As first enacted, the Washington Anti-SLAPP law provided that a person who communicates a complaint or information to any branch or agency of federal, state, or local government is immune from civil liability for claims based upon the communication to the agency or organization regarding any mаtter reasonably of concern to that agency or organization. RCW 4.24.510. The statute was enacted to encourage the reporting of potential wrongdoing to governmental entities by protecting reporting parties from the threat of retaliatory lawsuits. See
Gontmakher v. City of Bellevue,
The 2010 amendments to the Washington Anti-SLAPP Act vastly expand the type of conduct protected by the Act. These amendments, patterned after California’s Anti-SLAPP Act, became effective on June 10, 2010. See Substitute Senate Bill 6395. Chapter 118, Laws of 2010.
The newly enacted provisions provide, in relevant part, that “[a] party may bring a special motion to strike any claim that is based on an action involving public participation” as defined in the Act. Washington Anti-SLAPP Act § 2(4)(a). The Act applies “to any claim, however charaсterized, that is based on an action involving public participation and petition.” Washington Anti-SLAPP Act § 2(2). An action involving public participation includes: “any lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern.” Washington Anti-SLAPP Act § 2(2)(e).
Thus, the Act now provides protection for conduct in the furtherance of the exercise of free speech in connection with an issue of public concern.
A moving party bringing a special motion to strike a claim has the initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition. If the moving party meets this burden, the burden shifts to the responding party to establish by clеar and convincing evidence a probability of prevailing on the claim. If the responding party meets this burden, the court shall deny the motion. Washington Anti-SLAPP Act § 2(4)(b). In making this determination, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Washington Anti-SLAPP Act § 2(4)(c).
Finally, the Act is to be applied and construed liberally to effectuate its general purpose of protecting participants in public controversies from an abusive use of the courts. Washington Anti-SLAPP Act § 3.
This is a case of first impression. There is no authority interpreting this newly enacted legislation. However, the legislation mirrors the California Anti-SLAPP Act and both parties cite to California law as persuasive authority for interpreting the Washington amendments.
Analysis of an Anti-SLAPP motion requires a two-step process. A defendant who files an anti-SLAPP motion bears the threshоld burden of showing that the complaint arises from protected activity.
Club Members For An Honest Election v. Sierra Club,
Defendant contends its anti-SLAPP motion should be granted because (1) it has met the burden of establishing that the complaint arose from protected activity, and (2) Plaintiff fails to demonstrate a probability of succeeding on the merits of any of his state law claims. Plaintiff disputes both these contentions.
1. Causes of Action Based on Defendant’s Exercise of First Amendment Rights
Defendant asserts that Plaintiffs causes of action for invasion of privacy and misappropriation of likeness are based on the Defendant’s exercise of free speech in connection with a matter of public interest; i.e. the healthcarе crisis. Plaintiff poses a number of arguments in opposition to this assertion. Plaintiff contends that the Anti-SLAPP Act does not apply to Plaintiffs claims because (1) Plaintiffs claims are not based on the Defendant’s exercise of free speech, but on the Defendant knowingly misappropriating and publicly disclosing Plaintiffs film footage, song lyrics, voice, and likeness without his permission, (2) the Defendant’s claim of protected free speech activity is merely incidental to its misconduct upon which Plaintiffs claims are based, and (3) Plaintiff is not a public figure and did not inject himself into the public debate on social medicine.
The anti-SLAPP law applies to claims “based on” speech or conduct “in furtherance of the exercise of the constitutional right of ... free speech in connection with an issuе of public concern.” Washington Anti-SLAPP Act § 2. The focus is on whether the plaintiffs cause of action itself is based on an act in furtherance of the defendant’s right of free speech.
City of Cotati v. Cashman,
It is beyond dispute that documentary movies involve free speech.
Dyer v. Childress,
The Washington Legislature has directed that the Act be applied and construed liberally to effectuate its general рurpose of protecting participants in public controversies from an abusive use of the courts. Any conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern is subject to the protections of the statute. That Defendant may be considered a powerful business entity as compared with the private party Plaintiff is of no import under the modern framework of the statute. Nor is it critical that Plaintiff is not a public figure. Whereas a public figure, standing alone, may satisfy the public interest element of the Act, a private individual satisfies this requirement so long as there is a direct connection with the individual to a discussion of a topic of widespread public interest. See
Four Navy Seals v. Associated Press,
It is not disputed that the documentary film, Sicko, addresses issues of widespread public concern. Sicko is a feature-length documеntary film examining the healthcare crisis in America. Among other issues, Sicko addresses patients aggrieved by the healthcare coverage they received or were denied by their health insurance companies, and contrast that with the health care received by Americans when traveling abroad.
However, not all speech in a film is of public significance and therefore entitled to protection under the anti-SLAPP statute. The issue turns on the specific nature of the speech rather than generalities abstracted from it.
Dyer v. Childress,
Here, Plaintiffs causes of action arise out of the unauthorized use of his persona and voice. The Defendant’s activity that gives rise to the asserted liability is the story of Eric Turnbow’s experience as an American receiving medical treatment in a United Kingdom hospital. Plaintiff is depicted initially in the context of Mr. Turn-bow’s arrival in London and subsequently in the context of Mr. Turnbow suffering his injury and release from treatment. Although involuntarily thrust into the healthcare discussion, Plaintiffs appearance in the documentary is not tangential to the subject of the documentary, but is directly connected to the discussion of the healthcare system.
In contrast to
M.G.
is
Dyer v. Childress,
The present case more closely resembles M.G. than Dyer. Unlike Dyer, Plaintiff is not asserting that his persona was misrepresented. Nor is Plaintiff unconnected to the topic of healthcare. Plaintiff appears as a part of the discussion of healthcare in placing Mr. Turnbow’s presence in London in the proper context of the healthcare debate.
The Court finds that Defеndant has satisfied the threshold burden of showing that the complaint arises from protected activity.
2. Plaintiffs Burden to Establish a Probability of Prevailing
Once the Defendant has established the threshold burden of showing that the complaint is based on protected activity, the burden shifts to Plaintiff to demonstrate by clear and convincing evidence a probability of prevailing on the merits of his state law claims of invasion of privacy and misappropriation of likeness. See Washington Anti-SLAPP Act § 2(4)(b). In making this determination, the court considers pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Washington Anti-SLAPP Act § 2(4)(c).
Defendant contends that Plaintiffs right of publicity claims (misappropriation of likeness and invasion of privacy) are barred by the First Amendment and RCW 63.60.070.
In
Reid v. Pierce County,
In addition to the common law cause of action, Washington has provided a statutory remedy for misappropriation of identity under RCW 63.60. Every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness. RCW 63.60.010. The unauthorized use of these property rights (personas) is an infringement of the right, subjecting the infringer to liability for statutory or actual damages. RCW 63.60.050 and .060.
Under both the statutory cause of action and the common law, there is no cause of action for the publication of matters in the public interest. RCW 63.60.070 provides that “(1) For purposes of RCW 63.60.050, the use of a name, voice, signature, photograph, or likeness in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest, including, without limitation, comment, criticism, satire, and parody relating thereto, shall not constitute a use for which consent is required under this chapter.” Further, the statute does not apply to the use of an individual’s or personality’s name, voice, signature, photograph, or likeness, in any film when the use does not inaccurately claim or state an endorsement by the individual or personality.” RCW 63.60.070(2)(b).
Under the First Amendment, a cause of action for misappropriation of another’s name and likeness may not be maintained against expressive works, whether factual or fictional. See
Daly v. Viacom, Inc.,
The appropriate focus is on the use of the likeness itself.
Baugh v. CBS, Inc.,
It is beyond dispute that the documentary film Sicko relates to matters of public interest and is entitled to the First Amendment protection. The appropriation of Plaintiffs image and voice are immune from the state law causes of action for misappropriation. Additionally, RCW 63.60.070 provides an exemption to Washington’s statutory cause of actiоn for misappropriation.
The state law claims for misappropriation being barred by the First Amendment and subject to the statutory exemption, Plaintiff has not shown by clear and convincing evidence the probability of prevailing on the merits of these claims. Accordingly, the state law claims are subject to dismissal pursuant to the Washington Anti-SLAPP Act.
Copyright Preemption of State Law Claims
Defendant next contends that Plaintiffs state law claims are preempted by the Copyright Act, 17 U.S.C. §§ 101-1332,
Plaintiffs claims of misappropriation of likeness and invasion of privacy arise solely from the Defendant’s use of the home video depicting Plaintiff and of which Plaintiff asserts a copyright claim. Specifically, Plaintiff asserts that he is the copyright owner of the home video and the song heard therein, and that Defendant infringed on Plaintiffs exclusive copyrights in using the video and song in the documentary Sicko. Regarding the state law claims, Plaintiff asserts that Defendant’s unauthorized distribution of Plaintiffs home video gave publicity to a matter concerning Plaintiffs private life in violation of Plaintiffs right to privacy, and Defendant’s unauthorized distribution of Plaintiffs home video to the public exposed Plaintiffs likeness without his consent and for pecuniary gain. Dkt. 1 pg. 5-6.
Congress enacted the Copyright Act, 17 U.S.C. §§ 101-1332, to define and protect the rights of copyright holders. Under the Act, “the owner of copyright ... has the exclusive rights to do and to authorize” others to display, perform, reproduce or distribute copies of the work, and to prepare derivative works.
Id.
§ 106. The copyright is the right to control the work, including the decision to make the work available to or withhold it from the public.
Laws v. Sony Music Entertainment, Inc.
The Ninth Circuit applies a two-part test to determine whether a state law claim is preempted by Section 301. Laws, at 1137-38. First, the court determines whether the “subject matter” of a state law claim falls within the subject matter of copyright as described in Sections 102 and 103 of the Copyright Act. Second, if it does, the court determines whether the rights asserted under state law are equivalent to the rights contained in Section 106 of the Copyright Act. Id.
Citing
Downing v. Abercrombie & Fitch,
Downing, however, is distinguishable from the present action. In Downing, retailer Abercrombie & Fitch was developing a surfing theme for its subscription catalog. Abercrombie published a photo of the plaintiffs, who were participants in a surf championship in Hawaii in 1965. Abercrombie ran the photo, which it had purchased from the photographer (who held the copyright), and identified the plaintiffs by name. Without obtaining plaintiffs’ consent to use their names and images, Abercrombie also offered t-shirts exactly like those worn by the plaintiffs in the photo. Downing, at 999-1000. The court noted that although the photograph itself was within the subject matter protected by the Copyright Act, Abercrombie had not merely published the photograph. Rather, it published the photo in connection with a broad surf-themed advertising campaign, identified the plaintiffs-surfers by name, and offered for sale the same t-shirts worn by the plaintiffs in the photo. By doing so, it had suggested that the surfers had endorsed Abercrombie’s t-shirts. Accordingly, the court concluded that “it is not the publication of the photograph itself, as a creative work of authorship, that is the basis for [plaintiffs’] claims, but rather, it is the use of the [plaintiffs’] likenesses and their names pictured in the published photograph.” Id. at 1003.
In contrast to
Downing
is the more recent decision in
Laws v. Sony Music Ent., Inc.,
The court in
Laws
also found persuasive the California Court of Appeal’s decision in
Fleet v. CBS, Inc.,
Here, Plaintiffs state law claims arise solely from the use of the alleged copyrightable home video depicting Plaintiff. Unlike Downing, where the defendant used plaintiffs’ images well beyond the simple reproduction of the subject photograph, the appropriation of Plaintiffs image, voice, and lyrics is confined to the use of the home video in the documentary Sicko. Plaintiffs state law claims are more akin to Laws and Fleet, wherein the defendants’ alleged misappropriations were confined to solely displaying copyrighted material. Accordingly, Plaintiffs state law claims for invasion of privacy and misappropriation are within the subject matter of copyright.
The court further finds that the rights asserted under Washington law are equivalent to the rights protected under the Copyright Act. To satisfy the “equivalent rights” part of the preemption test, the alleged misappropriation must be equivalent to rights within the general scope of copyright.
Laws v. Sony Music Entertainment, Inc.,
The essence of Plaintiffs state law claims is Defendant’s unauthorized distribution of Plaintiffs home video. His claim is under the Copyright Act. See,
Laws v. Sony Music Entertainment, Inc.,
The state law claims being preempted by the Copyright Act, Plaintiff has not shown by clear and convincing evidence the probability of prevailing on the merits of these claims. Accоrdingly, the state law claims are subject to dismissal pursuant to the Washington Anti-SLAPP Act.
Invasion of Privacy Claim
Defendant also contends that Plaintiff cannot establish a claim for invasion of privacy.
Washington State recognizes the common law right of privacy and that an individual may bring a cause of action for invasion of that right.
Cawley-Herrmann v. Meredith Corp.,
Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeрs entirely to himself or at most reveals only to his family or to close personal Mends.... When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionableinvasion of his privacy, unless the matter is one of legitimate public interest.
See also Cawley-Herrmann, at 1266.
Plaintiff has not shown by clear and convincing evidence the probability of prevailing on the merits of the cause of action for invasion of privacy. Sicko discloses no facts of intimate details of Plaintiffs life that would be highly offensive to the ordinary reasonable person. Plaintiffs image and voice are not intimate details of his private life, nor are the events portrayed within the zone of privacy. See Cawley-Herrmann, at 1266.
Defendant is entitled to dismissal of Plaintiffs state law сlaim for invasion of privacy pursuant to the Anti-SLAPP Act.
Attorney Fees and Costs
The Washington’s Anti-SLAPP Act § 2(6)(a) provides:
The court shall award to a moving party who prevails, in part or in whole, on a special motion to strike made under subsection (4) of this section, without regard to any limits under state law: (i) Costs of litigation and any reasonable attorneys’ fees incurred in connection with each motion on which the moving party prevailed; (ii) An amount of ten thousand dollars, not including the costs of litigation and attorney fees; and (iii) Such additional relief, including sanctions upon the responding party and its attorneys or law firms, as the court determines to be necessary to deter repetition of the conduct and comparable conduct by others similarly situated.
The Defendant, having prevailed, is entitled to its reasonable attorneys fees and costs that it has incurred in presenting this anti-SLAPP motion and a statutory award in the prescribed amount of ten thousand dollars.
Conclusion
In conclusion, Plaintiffs state law claims for invasion of privacy and misappropriation of likeness are based on conduct that is protected by the Anti-SLAPP Act. Plaintiff cannot show by clear and convincing evidence the probability of prevailing on his state law claims. Accordingly, Plaintiffs state law claims are subject to dismissal. Defendant is entitled to an award of reasonable attorneys fees, costs and the statutory award of ten thousand dollars.
ACCORDINGLY;
IT IS ORDERED:
(1) Defendant’s Special Motion to Strike Plaintiffs Claims of Misappropriation of Likeness and Invasion of Privacy [Dkt. 15] is GRANTED
(2) Defendant is awarded its reasonable attorneys fees and costs incurred in presenting this motion and the statutorily prescribеd amount of ten thousand dollars.
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
This matter comes before the Court on Plaintiffs motion for reconsideration of this Court’s Order Granting Defendant’s Special Motion to Strike Plaintiffs Claims of Misappropriation of Likeness and Invasion of Privacy. The Court, having reviewed the motion for reconsideration and the remaining file, is fully informed and DENIES the motion for the reasons stated herein.
This Court’s Order, dated August 31, 2010, held that Plaintiffs state law claims for invasion of privacy and misappropriation of likeness are based on conduct that is protected by the Washington AntiSLAPP Act. The Court found that Plaintiff cannot show by clear and convincing evidence the probability of prevailing on his state law claims. Accordingly, Plaintiffs state law claims were dismissed. Pursuant to mandate of the Anti-SLAPP
Plaintiff seeks reconsideration of the Order, asserting the Court committed manifest error. This purported error is premised on the argument that application of Washington Anti-SLAPP (1) unduly burdens Plaintiffs right to access to the courts, (2) violates the separation of powers, and (3) violates the Washington constitution. These constitutional arguments are raised for the first time in this motion for reconsideration. 1
Pursuant to Local Rules W.D. Wash. CR 7(h)(1), motions for reconsideration are disfavored, and will ordinarily be denied unless there is a showing of (a) manifest error in the prior ruling, or (b) facts or legal authority which could not have been brought to the attention of the court earlier, through reasonable diligence. Plaintiff asserts manifest error.
Local Rule 7(h) is the functional equivalent of a motion to alter or amend a judgment under Fed. R. Civ. P. 59(e). See
Fuller v. M.G. Jewelry,
Fed. R. Civ. P. 59(e) provides a mechanism for a court to alter, amend, or vacate a prior order.
Hamid v. Price Waterhouse,
Rule 59(e) motions “may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.”
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
This is precisely what Plaintiff has done in this motion; Plaintiff raises arguments for the first time that could reasonably have been raised earlier in the litigation. While Plaintiff does cite certain alleged new authorities in support of his arguments, the Court properly disregards these citations since Plaintiff has not explained why the authorities could not have been raised earlier.
Considering the arguments and facts presented to the Court in the special motion to strike, there is no manifest error in the Court’s Order. Plaintiff is not entitled to reconsideration.
ACCORDINGLY
IT IS ORDERED:
Plaintiffs Motion for Reconsideration [Dkt. 24] is DENIED.
ORDER DENYING PLAINTIFF’S SECOND MOTION FOR RECONSIDERATION
This matter comes before the Court on Plaintiffs motion for reconsideration of this Court’s Order denying Plaintiffs motion for reconsideration of this Court’s Order Granting Defendant’s Special Motion to Strike Plaintiffs Claims of Misapproрriation of Likeness and Invasion of Privacy. The Court, having reviewed the second motion for reconsideration and the remaining file, is fully informed and DENIES the motion for the reasons stated herein.
This Court’s Order, dated August 31, 2010, held that Plaintiffs state law claims for invasion of privacy and misappropriation of likeness are based on conduct that is protected by the Washington AntiSLAPP Act. The Court found that Plaintiff cannot show by clear and convincing evidence the probability of prevailing on his state law claims. Accordingly, Plaintiffs state law claims were dismissed. Pursuant to mandate of the Anti-SLAPP statute, the prevailing party Defendant was awarded reasonable attorneys fees, costs, and the statutory award of ten thousand dollars. Dkt. 23.
Plaintiff timely moved for reconsideration of the Order, asserting the Court committed manifest error. This purported error was premised on the argument that application of Washington Anti-SLAPP (1) unduly burdens Plaintiffs right to access to the courts, (2) violates the separation of powers, and (3) violates the Washington Constitution. These constitutional arguments were raised for the first time in this motion for reconsideration. The Court denied Plaintiffs motion, holding that motions for reconsideration may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier 'in the litigation.
Plaintiffs instant motion for reconsideration asserts that newly discovered evidence warrants a grant of reconsideration. Plaintiff contends that “new evidence” establishes that Defendant obtained a continuance to file its answer; apparently in anticipatiоn of the effective date of the newly enacted Anti-SLAPP legislation. Plaintiff contends this “sleeper legislation” that was “handcrafted” by Defendant in order to attack Plaintiffs claims.
Initially, it appears that Plaintiffs motion for reconsideration does not seek reconsideration of this Court’s Order denying reconsideration
1
, but is a second motion for reconsideration of this Court’s Order of August 31, 2010. The instant motion was filed on October 8, 2010, and is
Rule 60(b) specifically provides that:
On motion and upon such terms as are just, the court may relieve a party ... from a final ... order ... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) ... or (6) any other reason justifying relief from the operation of the judgment.
A review of the motion and record herein provides no support for relief based on newly discovered evidence, or any other grounds, enumerated under Fed. R. Civ. P. 60(b). A motion for reconsideration “is not a vehicle to reargue the motion or to present evidence which should have been raised before.”
Beentjes,
at 1161;
United States v. Westlands Water Dist.,
Plaintiffs new evidence does not meet these criteria. The extension of time obtained by Defendant in which to file it’s answer does not appear to be related to the assertion of the Anti-SLAPP statute. The answer was filed prior to the enactment of the statute and had no bearing on Defendant’s ability to file the special motion to strike pursuant to the Anti-SLAPP statute. Nor is there any credible proof that the anti-SLAPP statute was enacted as “sleeper legislation” for the purpose of defeating this lawsuit. More importantly, the purported newly discovered evidence did not prevent Plaintiff from asserting the constitutional issues he now wishes to have considered by this Court.
Simply put, Plaintiff had ample opportunity to raise any and all defenses to application of the Anti-SLAPP statute to this litigation. That Plaintiff neglected to raise some issues, or tactically chose not to, does not afford Plaintiff a second opportunity to present his case.
ACCORDINGLY
IT IS ORDERED:
Plaintiffs Motion for Reconsideration of Order Denying Plaintiffs Motion for Reconsideration [Dkt. 38] is DENIED.
Notes
. According to submissions of Defendant, Dog Eat Dog Films, Inc., a loan-out company
. The Washington Anti-SLAPP Act was amended, еffective June 10, 2010, adding sections lo RCW 4.24. Because citations to the statute were not available as of the filing of this order, citations herein refer to the new sections of the statute as numbered in Substitute Senate Bill 6395. Chapter 118, Laws of 2010.
. Plaintiff's response to the special motion to strike argued (1) that Defendant failed to meet its burden of showing that Plaintiff's claims are subject to an Anti-SLAPP motion, (2) that Defendant failed to prove that judgment should be entered as a matter of law, and (3) a reasonable jury could find that the Defendant knowingly misappropriated and publicly disclosed Plaintiff's film footage, song lyrics, voice, and likeness without his permission. Dkt. 19.
. The issues raised for the first time in the initial motion for reconsideration were confined to whether the Court committed "manifest error.” The instant motion for reconsideration asserts "newly discovered evidence” as a basis for reconsideration.