United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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).
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
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).
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).
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).
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.
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).
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).
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
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
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