United States District Court, M.D. Florida, Jacksonville Division
CIELO JEAN GIBSON, MARKETA KAZDOVA, MAYSA QUY, PAOLA CANAS, SARA UNDERWOOD, TIFFANY TOTH, and URSULA MAYES, Plaintiffs,
WHITE'S PLACE, LLC and MICHAEL TOMKOVICH, Defendants. PAOLA CANAS, LINA POSADA, JESSICA BURCIAGA, JAIME EDMONDSON, and ROSIE JONES, Plaintiffs,
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,
M.T. PRODUCTIONS IN JACKSONVILLE, INC. and MICHAEL TOMKOVICH, Defendants.
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE
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
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).
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).
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).
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).
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
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.
Claims under the Lanham Act
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, ...