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Lancaster v. Bottle Club, LLC

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

May 10, 2018

AMBER LANCASTER, et al., Plaintiffs,
v.
THE BOTTLE CLUB, LLC d/b/a EYZ WIDE SHUT II; EYES WIDE SHUT, LLC d/b/a EYZ WIDE SHUT; BYOB CLUB, INC.; ANDREW HARROW; and SUSAN HARROW, Defendants.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court upon consideration of Plaintiffs' Motion for Partial Summary Judgment (Doc. # 161) and Defendants The Bottle Club, LLC, Eyes Wide Shut, LLC, BYOB Club, Inc., Andrew Harrow, and Susan Harrow's Motion for Summary Judgment (Doc. # 162), filed on February 28, 2018. The Motions have been fully briefed. (Doc. ## 174, 186, 188, 195). For the reasons that follow, Defendants' Motion is granted and Plaintiffs' Motion is denied.

         I. Background

         This case involves the unauthorized use of models' images on marketing materials for adult-oriented businesses. The twenty Plaintiffs are Amber Lancaster, Brittany Cripliver, Brooke Taylor Johnson, Cielo Jean Gibson, Cora Skinner, Gemma Lee Farrell, Heather Rae Young, Irina Voronina, Jesse Golden, Jessa Hinton, Joanna Krupa, Katarina Van Derham, Maysa Quy, Paola Canas, Sandra Valencia, Sara Underwood, Tiffany Selby, Tiffany Toth, Vida Guerra, and Kim Cozzens. They are all models or actresses and the unwilling subjects of some of Defendants' advertisements. (Doc. ## 161-2-161-21). All Plaintiffs make a living, or have in the past, by promoting their images “for the benefit of various clients, commercial brands, media and entertainment outlets.” (Doc. # 161-2 at ¶ 4). Plaintiffs “rely on [their] professional reputation[s] to book modeling and advertising jobs, ” making their reputations “critical to the opportunities that [they are] offered.” (Id. at ¶ 5). For that reason, each Plaintiff has “spent considerable time and energy protecting [her] image and reputation in the modeling industry, including being selective about the jobs that [she] take[s].” (Id. at ¶ 6).

         Defendants are various adult-oriented business entities and the owners or managers of those entities, Andrew and Susan Harrow. BYOB Club, Inc., was created with the intent to open a “bottle club” but those plans never reached fruition - BYOB Club has never operated and has no business activity. (A. Harrow Dep. I Doc. # 165-1 at 41:13-42:8, 44:11-45:13). The Bottle Club, LLC, does business as Eyz Wide Shut II and is a bar and nightclub for swingers. (S. Harrow Dep. Doc. # 165-3 at 16:2-24, 104:22-105:3). Susan is the owner and managing member of the Bottle Club. (Id. at 12:23-13:3, 13:17-20; A. Harrow Dep. I Doc. # 165-1 at 35:13-14). Eyes Wide Shut, LLC, does business as Eyz Wide Shut, which is a “short-stay lodging facility” - a hotel that rents by the hour for a maximum of ten hours. (S. Harrow Dep. Doc. # 165-3 at 46:6-20, 117:22-118:4, 126:24-127:17). Andrew Harrow represented that he is the managing member of Eyes Wide Shut, but Susan Harrow testified she is also a managing member. (Id. at 45:9-12, 47:8-24; A. Harrow Dep. I Doc. # 165-1 at 37:14-18). Eyz Wide Shut, the hotel, and Eyz Wide Shut II, the nightclub, are physically adjacent so that revelers at the nightclub can easily transition to the hotel. (A. Harrow Dep. I Doc. # 165-1 at 35:4-36:5, 38:23-39:3, 86:18-22; S. Harrow Dep. Doc. # 165-3 at 13:23-14:21).

         The Bottle Club and Eyes Wide Shut market their events, including themed nights and drink specials, through their shared website and on social media pages on which they post flyers. (S. Harrow Dep. Doc. # 165-3 at 51:19-52:8; A. Harrow Dep. I Doc. # 165-1 at 38:23-39:3, 70:1-12). Defendants' employee Anita Richards was the webmaster who created Defendants' website and “created all graphics and flyers for the website.” (Richards Aff. Doc. # 165-4 at ¶ 2; A. Harrow Dep. I Doc. # 165-1 at 59:7-60:16, 66:10-70:20). Although Susan Harrow insists she was not involved in advertising for the club or hotel, Andrew Harrow admitted that he proofread the flyers created by Richards, to check the dates and prices listed and sometimes to demand that a prettier girl be used on the advertisement. (S. Harrow Dep. Doc. # 165-3 at 24:16-21, 51:10-18; A. Harrow Dep. I Doc. # 165-1 at 36:11-17, 67:23-68:3, 136:18-137:13; A. Harrow Dep. II Doc. # 165-2 at 279:14-280:1, 282:4-284:6). Both Andrew and Susan Harrow were aware that releases are required to use someone's image in their marketing, as they had obtained releases from individuals appearing in a photoshoot or video taken on the club's premises in the past. (S. Harrow. Dep. Doc. # 165-3 at 98:2-99:16; A. Harrow Dep. I Doc. # 165-1 at 77:23-78:17).

         Each Plaintiff's image was used at least once in Defendants' advertisements, some on flyers, and others on the website. (Doc. # 161-26 at 54-152). But Plaintiffs never licensed the use of their images to Defendants. (Doc. # 161-2 at ¶¶ 13-15). Andrew Harrow acknowledged in his deposition that Defendants never contacted Plaintiffs for permission to use their images, or paid Plaintiffs for the use of the images. (A. Harrow Dep. I Doc. # 165-1 at 98:13-18, 130:20-131:11). Rather, he averred Richards had informed him that Plaintiffs' images were procured through a royalty-free website, so no licenses or releases were necessary. (Id. at 131:16-132:3). Plaintiffs insist they would not have agreed to have their images used by Defendants because they would not want to be associated with “the swinger lifestyle.” (Doc. # 161-2 at ¶ 11).

         Plaintiffs initiated this action on March 16, 2017. (Doc. # 1). On June 6, 2017, Plaintiffs filed their Amended Complaint, asserting claims against Defendants for false advertising and false endorsement under the Lanham Act, 15 U.S.C. § 1125(a), right of publicity (unauthorized misappropriation of name/likeness) under section 540.08, Fla. Stat., a common law claim for right of publicity (unauthorized misappropriation of name or likeness), Florida's Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.204, civil theft under sections 812.014 and 772.11, Fla. Stat., unjust enrichment, and conversion. (Doc. # 38). The Harrows and the Bottle Club moved to dismiss the Amended Complaint (Doc. ## 41-42), but the Court denied their motions on July 14, 2017. (Doc. # 46). All Defendants subsequently filed their Answers. (Doc. ## 52, 86-87).

         Discovery proceeded tensely. Each side filed various motions to compel better responses or depositions, as well as motions for orders to show cause. (Doc. ## 90-91, 103, 117, 130, 159). Plaintiffs moved to extend the expert discovery deadline based on Defendants' alleged recalcitrance in turning over a supposed membership list for the nightclub and hotel. (Doc. # 70). The Court extended Plaintiffs' expert report deadline to December 8, 2017, in light of Plaintiffs' concerns. (Doc. # 76). Plaintiffs also filed a petition for ex parte temporary restraining order with asset freeze and motion to disqualify Defendants' attorney (Doc. # 118), arguing that Andrew Harrow had admitted after his deposition that he was hiding assets and intended to file for bankruptcy to foil Plaintiffs' recovery. The motion was heard before the Honorable Julie S. Sneed, United States Magistrate Judge, and was subsequently denied. (Doc. ## 145, 154, 168).

         After discovery ended, Plaintiffs moved to exclude Defendants' damages expert. (Doc. # 157). That motion was referred to Judge Sneed and subsequently granted. (Doc. ## 158, 187, 194). On March 13, 2018, Defendants moved to strike Plaintiffs' expert Martin Buncher, and the Court also referred that motion to Judge Sneed. (Doc. ## 171-72). Judge Sneed issued a Report and Recommendation on April 5, 2018, recommending that Buncher's Supplemental Report be stricken as untimely, but the original Declaration not be stricken. (Doc. # 193). The Court adopted the Report and Recommendation on May 4, 2018, and struck Buncher's Supplemental Report but declined to strike the original Declaration. (Doc. # 200). Some of the parties have mediated - six Plaintiffs failed to appear at mediation - but reached an impasse. (Doc. # 184).

         Both Plaintiffs and Defendants moved for summary judgment, at least in part, on February 28, 2018. Plaintiffs' Motion for Partial Summary Judgment (Doc. # 161) seeks summary judgment on the Lanham Act claims and the statutory and common law right of publicity claims against three Defendants only, The Bottle Club, Eyes Wide Shut, and Andrew Harrow. Defendants responded in opposition to Plaintiffs' Motion, and Plaintiffs have replied. (Doc. ## 174, 186). Defendants' Motion for Summary Judgment (Doc. # 162) seeks summary judgment on all claims. Plaintiffs, in turn, responded to that Motion, and Defendants have replied. (Doc. ## 188, 195). The Motions are ripe for review.

         II. Legal Standard

         Summary Judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “When a moving party has discharged its burden, the non-moving party must then ‘go beyond the pleadings, ' and by its own affidavits, or by ‘depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

         If there is a conflict between the parties' allegations or evidence, the non-moving party's evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party's favor. Shotz v. City of Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, the court should not grant summary judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant's response consists of nothing “more than a repetition of his conclusional allegations, ” summary judgment is not only proper, but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981).

         Finally, the filing of cross-motions for summary judgment does not give rise to any presumption that no genuine issues of material fact exist. Rather, “[c]ross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538- 39 (5th Cir. 2004); see also United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984)(“Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.”)(quotation omitted).

         III. Analysis

         Defendants argue that they are entitled to summary judgment on all of Plaintiffs' claims, while Plaintiffs assert they are entitled to summary judgment against The Bottle Club, Eyes Wide Shut, and Andrew Harrow for the Lanham Act claims and the statutory and common law right of publicity claims. The Court will address the Lanham Act and state law claims separately.

         A. Claims ...


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