[*1] Shoemaker v Discovery Communications, LLC 2017 NY Slip Op 51208(U) Decided on May 22, 2017 Supreme Court, New York County Edwards, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.Decided on May 22, 2017Supreme Court, New York CountyMark Weybright Shoemaker and Nikki Rose Mediano Shoemaker, Plaintiffs,againstDiscovery Communications, LLC, Sharp Entertainment, LLC, and NBCUniversal Media, LLC, Defendants.101802/2016Mark Weybright Shoemaker and Nikki Rose Mediano Shoemaker - Pro SeFor Defendants:Davis Wright Tremaine, LLPby Elizabeth A. McNamara, Esq. and Geoffrey S. Brounell, Esq.Erika M. Edwards, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

PapersNumberedNotice of Motion and Affidavits/Affirmations/Memos of Law annexed 1Opposition Affidavits/Affirmations and Memos of Law annexed 2Reply Affidavits/Affirmations/Memos of Law annexed 3

Plaintiffs Mark Weybright Shoemaker and Nikki Rose Mediano Shoemaker ("Plaintiffs") brought this action against Defendants Discovery Communications, LLC ("Discovery"), Sharp Entertainment, LLC ("Sharp") and NBCUniversal Media, LLC ("NBC") (collectively "Defendants") to recover monetary and punitive damages based on Defendants' mischaracterizations of Plaintiffs on their television series "90 Day Fiancé." Plaintiffs also seek a preliminary injunction barring Defendants Discovery and Sharp from airing footage of their shows depicting Plaintiffs; removing all content; rescission of the parties' agreement for unconscionability; rescission of the parties' "Appearance Release Form and Arbitration Provision" for duress; appointment of legal help or for the court to assist Plaintiffs procedurally and for other relief.

Plaintiffs' allegations are primarily based on fraudulent inducement, breach of contract and defamation. Specifically, Plaintiffs amended complaint asserts the following nine causes of action: fraudulent inducement, fraud, breach of contract, breach of implied covenant of good faith and fair dealing, gross negligence, defamation per se, defamation libel, intentional infliction [*2]of emotional distress and unjust enrichment.

Defendants move to dismiss Plaintiffs' amended complaint pursuant to CPLR 3211(a)(1), (a)(5) and (a)(7), based on documentary evidence, as such claims are barred by the binding agreements and releases between the parties; failure to state a cause of action, as Plaintiffs' amended complaint fails to set forth a prima facie case for any cause of action; and because certain claims, or portions of such claims are barred by the applicable statute of limitations.

For the reasons set forth herein, the court grants Defendants' motion to dismiss and dismisses Plaintiffs' amended complaint against all Defendants with prejudice and without costs.

Here, Plaintiffs agreed to appear on Defendants' television series "90 Day Fiancé" which aired on the TLC cable network and portrays the experiences of foreign men and women who travel to the United States to live with their American fiancés for 90 days under a "Nonimmigrant Visa for a Fiancé." Defendant Discovery owns and operates the TLC network, Defendant Sharp produced the first ten episodes and a division of Defendant NBC produced the final "Tell All" episode. Plaintiff Mark Shoemaker lived in Maryland and Plaintiff Nikki Shoemaker came to the United States from the Philippines. Plaintiffs applied to appear, attended a casting call and were selected to appear on season three of the show. Plaintiff Mark Shoemaker also received a $1000.00 per episode appearance fee.

Plaintiffs signed a "Participant Agreement and Appearance Release" ("Agreement/Release") on June 30, 2015 and June 2, 2015, respectively, and an "Appearance Release Form and Arbitration Provision" ("Final Episode Release") for the final episode on November 6, 2015. The Agreement/Release contained a comprehensive general release and hold harmless clause and limits Plaintiffs to money damages, if any. Specifically, Paragraph 9 of the Release states that in consideration for Plaintiffs' participation and appearance on the program, Plaintiffs, their heirs and assigns

"hereby release and hold harmless (Defendants Sharp and Discovery) from any and all claims, demands, actions, causes of actions, suits, damages, losses, costs, attorneys' fees and/or expenses, known or unknown, which I may claim to have against (Defendants Sharp and Discovery) and I hereby agree that I will not bring or assert, or consent that others bring or assert, any claim of any nature whatsoever against anyone in connection with my participation, appearance and services hereunder, the use of the Results and Proceeds or relating to the exercise of the permissions granted by me hereunder."

Paragraph 12 contains provisions where Plaintiffs agreed to release, indemnify and hold harmless the Defendants from any third-party actions and workers' compensation claims. There is also a forum selection clause designating Manhattan courts for all claims to be governed by New York laws and a nondisclosure provision.

Additionally, the Agreement/Release granted Defendants broad rights, authority and discretion to film, edit, dub, alter or combine the material in any manner. By signing the Agreement/Release, Plaintiffs also acknowledged that the show might reveal material that is personal, intimate, embarrassing and could depict them in an unfavorable light and Plaintiffs consented to grant Defendants the right and sole discretion to include such material in their show. Defendants allege that this agreement also covers the final episode.

The Agreement/Release also limits Plaintiffs' right to recovery to money damages and precludes them from seeking an injunction against the exploitation of the show. Finally, by signing the Agreement/Release, Plaintiffs acknowledged that the document constituted the entire understanding among the parties, that they read and understood the agreement and that they had [*3]the opportunity to consult with counsel.

Plaintiffs also signed the Final Episode Release which included a comprehensive general release and hold harmless clause barring Plaintiffs from suing all three Defendants or anyone else for claims involving their appearance or depiction of them on the show. This release also includes Plaintiffs' consent to grant the Defendants broad rights and discretion to edit, dub and fictionalize the footage however Defendants see fit, even if it is embarrassing, humiliating, denigrating or hurtful to Plaintiffs.

Plaintiffs allege that they were misled into believing that the show was a documentary or "docu-series," that it was not scripted, that they would not have to promise anything, or that they would not be forced to do or say anything. Plaintiffs also allege that when they watched the third and fourth episodes, the day before they filmed the final "Tell All" episode, they realized that Defendants fraudulently misrepresented Plaintiffs' roles in the show and improperly altered several footages to cause Plaintiffs' damages, including the destruction of their reputation. Plaintiffs further allege that the language of the Release is vague, ambiguous, misleading and overreaching. Plaintiffs relied on the producer's false verbal explanations and promises and they only signed the release and agreements in reliance on such misrepresentations.

Defendants allege that the show was a reality show and that Defendants knowingly and voluntarily signed the agreements and releases which waived their rights to bring this action against Defendants.

Dismissal is warranted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law (CPLR 3211[a][1]; Leon v Martinez, 84 NY2d 83, 88 [1994]). Dismissal is proper where the documents relied upon definitively disposed of a plaintiff's claim (Bronxville Knolls v Webster Town Ctr. Pshp., 634 NYS2d 62, 63 [1995]).

When considering Defendant's motion to dismiss Plaintiff's complaint for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the Plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87-88, 614 NYS2d 972 [1994]). Normally, a court should not be concerned with the ultimate merits of the case (Anguita v Koch, 179 AD2d 454, 457, 579 NYS2d 335 [1st Dept 1992]). However, these considerations do not apply to allegations consisting of bare legal conclusions as well as factual claims which are flatly contradicted by documentary evidence (Simkin v Blank, 19 NY3d 46, 52, 945 NYS2d 222, [2012]).

Based on the documentary evidence presented, including the agreements and releases provided, Plaintiffs clearly waived their right to bring this action and are precluded from doing so. Plaintiffs expressly consented to permitting Defendants to retain broad discretion to edit, alter the contents of the footage and fictionalize it, even if such alterations resulted in Plaintiffs being depicted in an embarrassing, humiliating and denigrating manner. As discussed by Defendants, courts have consistently upheld such releases and agreements in similar circumstances. As such, the court determines that Plaintiffs knowingly and voluntarily entered into the agreements and they are precluded from bringing this action. As such, Plaintiffs' amended complaint is dismissed.

Additionally, Defendants have also established that dismissal is warranted for failure to state a cause of action as Plaintiffs failed to set forth a prima facie case for any of their causes of [*4]action. Therefore, the court also grants dismissal of Plaintiffs' amended complaint on this ground as well.

The court dismisses Plaintiffs' First Cause of Action for fraudulent inducement. To prove fraudulent inducement, Plaintiffs must demonstrate that Defendants intentionally made a misrepresentation of a material fact to defraud or mislead Plaintiffs, and that Plaintiffs reasonably relied on the misrepresentation and suffered damages as a result (Connaughton v Chipotle Mexican Grill, Inc., 135 AD3d 535, 650 [1st Dept 2016]). Fraudulent inducement claims require specificity, including the circumstances of the alleged fraud (CPLR 3016[b]). General allegations that Defendants entered into a contract with no intent to perform are insufficient to support Plaintiffs' fraudulent inducement claim. However, it is sufficient if Plaintiffs pled that they were induced to enter into a contract based on Defendants' promise to perform and that Defendants, at the time they made the promise, had a preconceived and undisclosed intention of not performing the contract, then such a promise would constitute a representation of present fact collateral to the terms of the contract (Manas v VMS Assoc., LLC, 53 AD3d 451, 453 [1st Dept 2008]).

The court determines that Plaintiffs failed to state a cause of action for fraudulent inducement because they failed to set forth that Defendants made a misrepresentation of fact which they knew to be false, with the intent to induce Plaintiffs' reliance on it, and which caused harm to Plaintiffs for their justifiable reliance upon it (see New York City Housing Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 85 [1st Dept 2000]; Tierney v Capricorn, L.P., 189 AD2d 629, 631 [1st Dept 1993]). As such, the court dismisses Plaintiffs' First Cause of Action for fraudulent inducement.

The court dismisses Plaintiffs' Second Cause of Action for fraud as Plaintiffs failed to sufficiently demonstrate how they reasonably relied upon Defendants' alleged misrepresentations and they failed to plead this claim with the required specificity. Additionally, the terms of the Agreement/Release clearly indicate that the agreement constituted the entire understanding among the parties. Therefore, if Plaintiffs relied upon oral promises or misrepresentations made by a producer, such reliance was not justified.

Plaintiffs' Third Cause of Action for breach of contract is dismissed because Plaintiffs failed to demonstrate that Defendants breached a clause in the parties' written agreements or that they breached another binding agreement between the parties that was not precluded by the plain language of the written agreements. The Agreement/Release clearly states that it is the entire understanding among the parties and Plaintiffs failed to allege that Defendants breached a duty under the contracts.

Implied in every contract is a covenant of good faith and fair dealing (Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62, 68 [1978]). To recover under Plaintiffs' Fourth Cause of Action for breach of implied covenant of good faith and fair dealing, Plaintiffs must demonstrate that Defendants acted in a manner that, although not expressly forbidden by any contractual provision, would deprive Plaintiffs of their right to receive the benefits under their agreement (Jaffe v Paramount Communs., 222 AD2d 17, 22-23 [1st Dept 1996]). Here, Plaintiffs failed to do so. Additionally, the court dismisses this claim because it appears to be based solely upon Defendants' alleged failure to act in good faith in the performance of their alleged contractual obligations, which is duplicative of Plaintiffs' breach of contract claim (Amcan Holdings, Inc. v Canadian Imperial Bank of Commerce, 70 AD3d 423, 426 [1st Dept 2010]).

Plaintiffs failed to set forth a prima facie case for their Fifth Cause of Action for gross [*5]negligence so the court dismisses this claim as well. Additionally, this claim is duplicative of Plaintiffs' breach of contract claim as claims based on negligent or gross negligent performance of a contract are not cognizable (Pacnet Network Ltd. v KDDI Corp., 78 AD3d 478, 479 [1st Dept 2010] [internal quotation marks and citation omitted].

Plaintiffs' Sixth and Seventh Causes of Action for defamation per se and libel are also dismissed. To recover for defamation, Plaintiffs must prove that Defendants made "a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se" (Epifani v Johnson, 65 AD3d 224, 233 [2009] [internal quotations and citations omitted]). The complaint must set forth the particular words allegedly constituting defamation, the time, place and manner in which the false statement was made, and specify to whom it was made (CPLR 3016[a]; id.; Dillon v City of New York, 261 AD2d 34, 38 [1999]). A defamatory statement is libelous per se "if the statement tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society (Matovcik v Times Beacon Record Newspapers, 46 AD3d 636, 637 [2007] [internal quotations and citations omitted]). "In evaluating whether a cause of action for defamation is successfully pleaded, the words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction (Dillon, 261 AD2d at 38 [citations omitted]).

Here, Plaintiffs' failed to demonstrate a prima facie case for either defamation per se or libel and based on the circumstances of this case, such allegations are not actionable. Furthermore, the Agreement/Release signed by Plaintiffs clearly warned Plaintiffs that the show might reveal material that is personal, intimate and embarrassing and Plaintiffs consented to grant Defendants the right and sole discretion to include any such material in their show. Therefore, these causes of action are dismissed.

Plaintiffs' Eighth Cause of Action for intentional infliction of emotional distress is also dismissed. To recover for this cause of action, Plaintiffs' must demonstrate that Defendants acted in an extreme and outrageous manner with the intent to cause, or in disregard of a substantial probability of causing, Plaintiffs' emotional distress and such actions caused Plaintiffs to suffer severe emotional distress (Howell v New York Post Co., 81 NY2d 115, 121 [1993]). Courts have only found liability in rare instances where a defendant's conduct has been "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (id. at 122). Here, Plaintiffs failed to demonstrate that Defendants' conduct rose to this level.

Plaintiffs' Ninth and final Cause of Action for unjust enrichment is also dismissed because an express contract exists and Defendants' alleged conduct is duplicative of Plaintiffs' breach of contract claim (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]. Unjust enrichment requires the receipt by one party of money or a benefit to which it is not entitled, at another's expense (Abacus Fed. Sav. Bank v Lim, 75 AD3d 472 [1st Dept 2010] [citation omitted]). It is a "quasi-contract claim" that contemplates "an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned" (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009] [internal quotation marks and citation omitted]). It requires a party to hold property "under such circumstances that [*6]in equity and good conscience he ought not to retain" (Sharp, 40 NY2d at 123). Such equitable consideration is "essentially a legal inference drawn from the circumstances surrounding a transfer of property and the relationship of the parties" (id.). Here, Plaintiffs failed to set forth sufficient allegations to support this claim.

Additionally, Plaintiffs failed to state a claim for punitive damages, which are available only in those limited circumstances where it is necessary to deter a defendant and others from engaging in conduct that may be characterized as gross and morally reprehensible, and of such wanton dishonesty as to imply a criminal indifference to civil obligations (New York Univ. v Continental Ins. Co., 87 NY2d 308, 315-316 [1995] [internal quotation marks and citations omitted]). Where a claim is based on breach of a contractual relationship, when considering whether to grant a defendant's motion to dismiss a cause of action for punitive damages, courts must first identify a tort independent of the contract (id. at 316).

Furthermore, since the court dismisses all of Plaintiffs' claims, the court declines to address Defendants' specific arguments in support of dismissal based on statute of limitations grounds. Finally, the court finds Plaintiffs' remaining arguments to be without merit, finds that Plaintiffs are precluded from seeking injunctive relief and the court hereby denies the additional relief requested. Therefore, the court grants Defendants' motion to dismiss and dismisses Plaintiffs' complaint against Defendants with prejudice.

Accordingly, it is hereby

ORDERED that Defendants Discovery Communications, LLC's, Sharp Entertainment, LLC's and NBCUniversal Media, LLC's motion to dismiss Plaintiffs Mark Weybright Shoemaker's and Nikki Rose Mediano Shoemaker's amended complaint herein is granted and the complaint is dismissed in its entirety as against Defendants with prejudice and without costs. The Clerk is directed to enter judgment accordingly in favor of Defendants.

This constitutes the decision and order of the court.

Date: May 22, 2017HON. ERIKA M. EDWARDS