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Gibson v. White's Place, LLC

United States District Court, M.D. Florida, Jacksonville Division

September 20, 2017

CIELO JEAN GIBSON, MARKETA KAZDOVA, MAYSA QUY, PAOLA CANAS, SARA UNDERWOOD, TIFFANY TOTH, and URSULA MAYES, Plaintiffs,
v.
WHITE'S PLACE, LLC and MICHAEL TOMKOVICH, Defendants. PAOLA CANAS, LINA POSADA, JESSICA BURCIAGA, JAIME EDMONDSON, and ROSIE JONES, Plaintiffs,
v.
FLASH DANCERS, INC. and MICHAEL TOMKOVICH, Defendants. BROOKE TAYLOR aka Brooke Johnson, LAURIE ANN YOUNG, MALU LUND, SARA UNDERWOOD, and JAMIE EASON aka Jamie Middleton, Plaintiffs,
v.
M.T. PRODUCTIONS IN JACKSONVILLE, INC. and MICHAEL TOMKOVICH, Defendants.

          ORDER

          TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the Consolidated Corporate Defendants' Motion to Dismiss the First Amended Complaint (Doc. 29), Individual Defendant Tomkovich's Motion to Dismiss the First Amended Complaint (Doc. 30), and the Consolidated Plaintiffs' responses in opposition (Docs. 33 & 34). Originally separate actions, the First Consolidated and Amended Complaint (“Complaint”) (Doc. 24) combined the three pending actions within the Middle District of Florida Jacksonville Division.[1]

         I. BACKGROUND

         This action arises out of Defendants' alleged unauthorized use and theft of Plaintiffs' images and likenesses to advertise their businesses. According to the Complaint, Plaintiffs are professional models who earn their living “by promoting [their] image and likeness to select clients . . . .” (Doc. 24 at ¶ 50). Each Corporate Defendant is a Florida business “that engages in the business of entertaining its patrons with nude and/or semi-nude dancing and alcohol.” (Doc. 24 at ¶¶ 32, 36, 40). Tomkovich is the President and Director of each Corporate Defendant and maintains “operational and managerial control and responsibility over the business operations of, and decision-making authority for [Corporate Defendants']. . . promotional, advertising, marketing, and endorsement activities . . . .” (Doc. 24 at ¶¶ 44-45).

         The Complaint contains the same seven counts by all fifteen plaintiffs against the various defendants. Plaintiffs seek compensation for: false advertising violations under the Lanham Act, 15 U.S.C. § 1125(a) (Count I); false endorsement violations under the Lanham Act, 15 U.S.C. § 1125(a) (Count II); violations of the right to publicity and unauthorized misappropriation under Florida Statute Section 540.08 (Count III); violations of the common law right to publicity and unauthorized misappropriation (Count IV); violations of Florida's Deceptive and Unfair Trade Practices Act (“FDUTPA”), Florida Statute Section 501.204 (Count V); civil theft violations under Florida Statute Sections 812.014 and 772.11 (Count VI); and unjust enrichment (Count VII). (Doc. 24 at ¶¶ 258-1559).

         The Complaint alleges that Defendants used Plaintiffs' images in different advertising materials, commonly on social media. (Doc. 24 at ¶ 1). Defendants never received Plaintiffs' consent to use the images. (Doc. 24 at ¶ 4). Plaintiffs sent Defendants cease and desist letters, which did not stop the allegedly unauthorized use of the images. (Doc. 24 at ¶ 13).

         The Corporate Defendants have moved to dismiss all counts of the complaint for failure to state a claim upon which relief can be granted. (Doc. 29). Corporate Defendants also allege that this Court should not exercise supplemental jurisdiction over Plaintiffs' state law claims. (Doc. 29 at 15). Additionally, Tomkovich moves to dismiss all claims because he should not be held individually liable as an officer and manager of the Corporate Defendants. (Doc. 30).

         Throughout the Middle District, and elsewhere in Florida, courts have handled a plethora of similar cases involving many of the same plaintiffs, defendants, lawyers, and claims. Although not factually identical, the claims and arguments in those cases are very similar to those here. Since most of the issues before this Court have already been decided, this Court will adopt portions of those opinions where appropriate. See, e.g., Gibson v. Resort at Paradise Lakes, LLC, No. 8:16-cv-791-T-36AAS, 2017 WL 3421532, at *1 (M.D. Fla. Aug. 9, 2017); Edmondson v. 2001Live, Inc, 8:16-cv-3243-T-17AEP, Doc. # 40, at 1 (M.D. Fla. July 25, 2017); Lancaster v. The Bottle Club, LLC., 8:17-cv-634-T-33JSS, 2017 WL 3008434, at *1 (M.D. Fla. July 14, 2017); Krupa v. Platinum Plus, LLC, 8:16-cv-3189-T-33MAP, 2017 WL 1050222, at *1 (M.D. Fla. Mar. 20, 2017); Burciaga v. Gold Club Tampa, Inc., 8:16-cv-790-T-27JSS, Doc. # 35, at 1 (M.D. Fla. Dec. 28, 2016); Edmondson v. Caliente Resorts, LLC, No. 8:15-cv-2672-T-23TBM, 2016 WL 1756070, at *1 (M.D. Fla. May 3, 2016).

         II. LEGAL STANDARD

         To survive a motion to dismiss, the complaint must include a “short plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). When ruling on a motion to dismiss, the court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). However, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the complaint must state a plausible claim for relief to survive a motion to dismiss. Iqbal, 556 U.S. at 679.

         III. DISCUSSION

         A. Claims under the Lanham Act

         The Lanham Act states:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, ...

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