United States District Court, M.D. Florida, Ocala Division
AMBER LANCASTER, DESSIE MITCHESON, LINA POSADA, SARA UNDERWOOD, URSULA MAYES, RACHEL BERNSTEIN KOREN, SANDRA VALENCIA, ALANA CAMPOS, CIELO JEAN GIBSON and MARKETA KAZDOVA, Plaintiffs,
OCALA HOSPITALITY GROUP, LLC, Defendant.
S. MOODY. JR. UNITED STATES DISTRICT JUDGE
sued Defendant alleging it used Plaintiffs' images
without permission to promote bars and nightclubs Defendant
operates. Defendant defaulted, and the Court held an
evidentiary hearing on damages. After concluding Plaintiffs
proved damages on one of their claims, the Court entered a
default judgment against Defendant. The Court also told
Plaintiffs they could file a separate motion for
attorneys' fees and costs in which they would need to
show both entitlement and the amount claimed. While
Plaintiffs showed they are entitled to recover some costs,
Plaintiffs failed to show they are entitled to attorneys'
Ocala Hospital Group, LLC, operates Cowboys Saloon and The
Colosseum out of the same address in Ocala, Florida. Cowboys
Saloon is a country bar, and The Colosseum is a nightclub.
The websites and social media pages for Cowboys Saloon and
The Colosseum cross-promote the venues with various specials.
The promotional advertisements featured pictures of women,
listed themes (e.g. “College Night and Beer
Pong, ” “Sexy School Girls Party, ”
“80s Party, ” etc.), and included drink specials.
It is these promotional advertisements that are the subject
of this case.
Plaintiffs are models whose images were used in these
promotional advertisements without permission. All Plaintiffs
make their living as models and enjoy a not-insignificant
level of national and international success in their field.
Despite their varied backgrounds, all Plaintiffs say they
would never have taken a job where their likeness would be
used in the way Defendant did: promoting alcohol specials at
relatively small venues.
sued Defendant on the following theories of liability: (1)
violation of the Lanham Act, 15 U.S.C. section 1125(a)(1)(B),
for false advertising; (2) violation of the Lanham Act, 15
U.S.C. section 1125(a)(1)(A), for false endorsement; (3)
violation of section 540.08, Florida Statutes, for right to
publicity and unauthorized misappropriation of name/likeness;
(4) violation of the common law right to publicity and
unauthorized misappropriation of name or likeness; (5)
violation of section 501.204, Florida Statutes, for violation
of Florida's Deceptive and Unfair Trade Practices Act;
(6) violation of sections 772.11 and 812.014, Florida
Statutes, for civil theft; (7) unjust enrichment; and (8)
conversion. Defendant defaulted, and the Court held an
evidentiary hearing on May 2, 2017, to consider
the evidentiary hearing, the Court entered a Final Default
Judgment Order (Doc. 22). The Order explained that
Plaintiffs' evidence at the hearing focused solely on
their Lanham Act claims and claims brought under section
540.08, Florida Statutes. The Court concluded Plaintiffs
failed to establish damages under the Lanham Act, but did
establish $222, 500 in damages under section 540.08. The
Court concluded the Order by stating:
The Court reserves jurisdiction to determine Plaintiffs'
entitlement to attorneys' fees and costs. Plaintiffs'
counsel is directed to file a motion with fourteen (14) days
from the date of this Order showing both entitlement to and
the amount of attorneys' fees and costs Plaintiffs are
requesting. Fed.R.Civ.P. 54(d).
(Doc. 22, p. 12).
filed a motion seeking $44, 825.00 in attorneys' fees,
and $9, 909.27 in taxable costs. As explained below,
Plaintiffs failed to show entitlement to attorneys' fees
in their motion, so the Court cannot award any attorneys'
fees. And Plaintiffs requests for costs must be reduced
because the motion requests non-taxable costs.
Florida law, each party generally bears its own
attorneys' fees unless a contract or statute provides
otherwise.” United States v. Pepper's Steel
& Alloys, Inc., 289 F.3d 741, 742 (11th Cir. 2002).
Federal Rule of Civil Procedure 54(d)(2) explains that when a
party seeks attorneys' fees, they must file a motion
“specify[ing] the judgment and the statute, rule, or
other grounds entitling the movant to the award.” There
was no contract between Plaintiffs and Defendant, so any
entitlement to attorneys' fees necessarily must be based
on a statute or rule.
brought successful claims under section 540.08, Florida
Statutes. The ...