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Edmondson v. Caliente Resorts, LLC

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

March 30, 2018

JAIME FAITH EDMONDSON, et al., Plaintiffs,
v.
CALIENTE RESORTS, LLC, et al., Defendants.

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE.

         The plaintiffs, all of whom are professional models, allege (Doc. 80) that without consent the defendants used the plaintiffs' images to promote “sexy-costume couples themed parties” and other events “geared” toward “swingers” at the Caliente Resort and Vacation Club.[1] (Doc. 101 at 6) The plaintiffs sue under the Lanham Act (Count I); sue under Section 540.08, Florida Statutes, and under Florida common law for unauthorized misappropriation of name (Counts II and III); sue under Florida's Deceptive and Unfair Trade Practices Act (Count IV); and sue under Florida common law for civil theft (Count V), for defamation (Counts VI and VII), and for unjust enrichment (Count VIII).

         The defendants move (Doc. 101) for summary judgment on Counts I, IV, and V; for summary judgment on the claims for punitive damages (Counts II, III, V, VI, and VII); and for summary judgment on the claims for an attorney's fee (Counts II, III, VI, VII, and VIII). The plaintiffs move (Doc. 144) for summary judgment on all counts.

         Count I

         All parties move for summary judgment on Count I. To prevail on a false advertising claim under the Lanham Act, the plaintiffs must show (1) that the defendants' advertisements were false or misleading; (2) that the advertisements deceived, or had the capacity to deceive, consumers; (3) that the deception materially affected purchasing decisions; (4) that the misrepresentation affects interstate commerce; (5) and that the plaintiffs were injured or are likely to suffer injury because of the false advertising. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004).

         The plaintiffs and the defendants fail to show that no genuine dispute exists as to any material fact. For example, the defendants plausibly dispute that consumers were deceived or misled by the use of the plaintiffs' images on the defendants' promotional materials. (Doc. 101 at 14)

         Counts II and III

         The plaintiffs move for summary judgment on their claims for unauthorized misappropriation of name. The plaintiffs' argument on both counts consists of just more than half a page of text that recites the legal elements of the claims and concludes, “There being no genuine issue of material fact, summary judgment should be granted for Plaintiffs . . . .” (Doc. 144 at 23) But a genuine dispute of material fact exists (such as whether the defendants were authorized to use the plaintiffs' images through the use of a stock image license and through Peter Smith's “affiliation” with lingerie companies).[2] (Doc. 117 at 11) Count IV All parties move for summary judgment on

         Count IV.

         The defendants argue that because the plaintiffs are “non-consumers, ” the plaintiffs lack standing to bring a claim under FDUTPA. (Doc. 20 at 101) But a recent state court decision examining whether a “non-consumer” has standing under FDUTPA holds that “[w]e . . . align ourselves with the [district] courts which have held that an entity does not have to be a consumer in order to have standing to bring a FDUTPA claim.” Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., 169 So.3d 164, 169 (Fla. 4th DCA 2015). The plaintiffs have standing to bring their FDUTPA claims.

         To establish a claim under FDUTPA, the plaintiffs must show (1) a deceptive act or unfair practice, (2) causation, and (3) actual damages. Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA 2006). False advertising is a deceptive act or unfair practice. “[C]ourts have recognized that a claim for false, misleading and deceptive advertising falls under FDUTPA.” Ameritox Ltd v. Aegis Services Corp., No. 07-80498-CIV, 2008 WL 4540063, at *2 (S.D. Fla. Oct. 10, 2008) (Marra, J.).

         The defendants argue that the plaintiffs fail to establish deception and causation because the plaintiffs fail to proffer evidence that the plaintiffs' images on the flyers would probably deceive an objectively reasonable person. The plaintiffs respond that the defendants cannot show that “there is no set of circumstances under which [the] plaintiffs could prevail on their FDUTPA claim[s].” (Doc. 114 at 16) Contrary to the plaintiff's assertion that the plaintiffs have presented “dispositive and undisputed evidence of deception and causation, ” genuine disputes of material fact exist (including, for example, whether the advertisements were misleading or likely to mislead and constitute an unfair or deceptive trade practice). (Doc. 114 at 16)

         Also, the defendants argue that the plaintiffs cannot show actual damages, which are recoverable under FDUTPA. Rollins, Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984). The plaintiffs ...


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