
    METLIFE INVESTORS USA INSURANCE COMPANY, Plaintiff-Counter-Defendant-Appellee, Daniel Zeidman, as Trustee of the Esther Zeidman Trust, Defendant-Cross Claimant-Cross Defendant-Appellee, v. Lavell S. PRATT, as Personal Representative of the Estate of Sherry Pratt, Defendant-Cross Defendant-Cross Claimant-Counter-Claimant-Appellant.
    No. 10-4093.
    United States Court of Appeals, Second Circuit.
    Sept. 19, 2011.
    Peter Campbell King, Cline, King & King, P.C., Columbus, IN, for Appellant.
    Christopher Gilbert, The Unger Law Group, P.L., Orlando, FL, for Appellee, MetLife Investors USA Insurance Company.
    Joseph P. LaSala, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Morristown, NJ, for Appellee, Daniel Zeidman.
    PRESENT: DENNIS JACOBS, Chief Judge, ROBERTA. KATZMANN, SUSAN L. CARNEY, Circuit Judges.
   SUMMARY ORDER

Lavell S. Pratt, as Personal Representative of the Estate of Sherry Pratt, appeals the district court’s judgment dismissing his cross claim and counter claim alleging that MetLife Investors USA Insurance Company and Daniel Zeidman, as Trustee of the Esther Zeidman Trust, violated Illinois statutory and common law, including the Illinois Right of Publicity Act (“IRPA”). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

We review de novo a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in favor of the pleader. See ECA & Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir.2009). “To survive a motion to dismiss, a complaint must plead enough facts to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). “[A]lthough ‘a court must accept as true all of the allegations contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclu-sory statements, do not suffice.’ ” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (second alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

Appellant first argues that ap-pellees’ use of Sherry Pratt’s identity as the measuring life under a since-rescinded annuity contract without her consent violated Ms. Pratt’s right of publicity under the IRPA. The IRPA provides that “A person may not use an individual’s identity for commercial purposes during the individual’s lifetime without having obtained previous written consent_” 765 Ill. Comp. Stat. 1075/30(a). The statute defines “commercial purpose” to mean “the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.” Id. 1075/5. The statute does not define “public use.” The district court consulted Webster’s Third New International Dictionary, which defines “public” to mean “accessible to or shared by all members of the community,” or “exposed to general view.” Met-Life Investors USA Ins. Co. v. Zeidman, 734 F.Supp.2d 304, 311 (E.D.N.Y.2010). Under Illinois law, “[w]hen [a] statute contains undefined terms, it is entirely appropriate to employ a dictionary to ascertain the plain and ordinary meaning of those terms.” People v. Davison, 233 Ill.2d 30, 329 Ill.Dec. 347, 906 N.E.2d 545, 551 (2009). Appellant has failed to allege that appellees’ use of Ms. Pratt’s identity in connection with a private annuity contract was “public” in the ordinary sense of the word, and therefore has not stated a plausible claim for relief under the IRPA.

Appellant has also failed to state a claim for common law appropriation. The Appellate Court of Illinois has held that the IRPA superseded the common law tort of appropriation. Blair v. Nev. Landing P’ship, RBG, LP, 369 Ill.App.3d 318, 307 Ill.Dec. 511, 859 N.E.2d 1188, 1192 (2006) (“After December 31, 1998, the common-law tort of appropriation of one’s likeness ceased to exist. The Right of Publicity Act, effective January 1, 1999, completely replaced the common-law tort of appropriation of likeness.... ”). “This Court is bound to apply the law as interpreted by a state’s intermediate appellate courts unless there is persuasive evidence that the state’s highest court would reach a different conclusion.” V.S. v. Muhammad, 595 F.3d 426, 432 (2d Cir.2010). Appellant has provided no such evidence, and cites no post-IRPA Illinois case recognizing the continuing vitality of a separate appropriation tort distinct from the right to publicity under the IRPA that would cover the conduct alleged in appellant’s cross claim and counter claim. Appellant has therefore failed to state a claim for relief under Illinois common law.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.  