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Kirby Rambo Collections, Inc. v. Lee County

United States District Court, M.D. Florida, Fort Myers Division

May 21, 2018

LEE COUNTY, Defendant.



         This matter comes before the Court on review of defendant's Motion to Dismiss - Dispositive Motion (Doc. #11) filed on April 23, 2018. Plaintiff filed a Response (Doc. #16) on May 4, 2018. For the reasons set forth below, the motion is denied.


         Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth, ” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages in a two-step approach: “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.


         Plaintiff Kirby Rambo Collections, Inc. (plaintiff or Kirby Rambo) alleges claims for copyright infringement, replevin, and unjust enrichment against defendant Lee County, a subdivision of the State of Florida (defendant or Lee County). Specifically, in Count I plaintiff alleges that defendant has infringed upon its ability to create derivative works of the sculpture, and has made derivatives without plaintiff's knowledge or authorization, in violation of 17 U.S.C. § 501. In Count II, plaintiff alleges that it owns a valid copyright in the sculpture, and holds an exclusive right to display the sculpture publicly. Plaintiff alleges that defendant infringed upon plaintiff's copyright and ability to display the sculpture in violation of 17 U.S.C. § 501. Plaintiff also seeks to recover possession of the sculpture under Florida State law, and damages for the unjust enrichment in Counts III and IV.

         The Complaint alleges the following: Plaintiff's President, Pamela Rambo (Ms. Rambo), is a celebrated local artist, marketer, promotor, and social media influencer. Plaintiff has a long history of working as a volunteer for defendant Lee County, Florida. In early 2016, the parties started discussing the 2016 National Seashell Day Event, including the creation of a sculpture to be created by Ms. Rambo. A verbal agreement was reached, and in furtherance of the discussions, defendant identified and purchased a used 2005 Volkswagen Beetle for $7, 500 from Craigslist. The vehicle was delivered to plaintiff, along with supplies.

         Ms. Rambo designed the sculpture using more than 20, 000 shells to create the “Shell Love Bug”. Ms. Rambo spent over a month and hundreds of hours creating and finishing the sculpture, and used many of her own priceless and unique shells. The sculpture was based on original renderings, and an original work of authorship fixed in a tangible medium. Even though the sculpture incorporates an automobile, that is not its primary function and the public cannot touch or drive the sculpture. There was no written agreement, and plaintiff is not an employee of Lee County. Ms. Rambo is the registered owner of the copyright, Registration Number VA 2-077-806, and has a signed Copyright Assignment Agreement with plaintiff assigning her copyright in the sculpture to plaintiff.

         In 2016, plaintiff and defendant entered into a verbal agreement but it was not finalized until after the work on the sculpture began. During the creation, defendant represented that it would transfer title and ownership of the vehicle to plaintiff after the sculpture was publicly displayed at the 2016 National Seashell Day Event. Once fully negotiated, Ms. Rambo materially changed her approach to the creation of the sculpture in reliance on the fully negotiated agreement. After the Event, defendant did not transfer title or ownership of the vehicle to plaintiff as agreed.

         On June 28, 2016, after the date the vehicle should have been transferred to plaintiff, there was a meeting at which defendant told plaintiff it still wanted to use the sculpture to market and promote itself. Plaintiff agreed to allow it “so long as both parties were mutually agreeable, ” and a shared calendar was created for both to share the sculpture. Defendant continually represented to plaintiff that it would transfer title and ownership of the vehicle to plaintiff but never did. Plaintiff continued to allow defendant to use the vehicle for over a year and a half under the arrangement waiting for the transfer of title. The vehicle remained in the possession of plaintiff, except when defendant desired to display the sculpture via the shared calendar.

         The relationship soured as plaintiff continued to wait for the transfer of title and ownership, and when defendant made alterations to the sculpture without plaintiff or Ms. Rambo's knowledge or consent, and damaged the sculpture on several occasions. In breach of the verbal agreement, defendant continues to retain title to the vehicle, and continues to market and advertise the sculpture without plaintiff or Ms. Rambo's permission or consent.

         On March 9, 2018, plaintiff met counsel for defendant where it was expressly stated that the sculpture would not be returned and that it belongs to defendant. The same day, plaintiff sent a cease and desist letter to defendant indicating that any future or continue attempts to use, display, promote, market, or deny plaintiff access to the sculpture would be considered a willful infringement of plaintiff's copyright.

         The next day, defendant intentionally promoted and displayed the sculpture to the public at the 38th Annual Marco Island Shell Show without plaintiff's permission or consent. On or about March 18, 2018, defendant allowed the Lakes Park Enrichment Foundation to publicly display the sculpture at the annual Brick by Brick Picnic, and on the Lakes Park Enrichment Foundation Facebook page, also without plaintiff's permission or consent. Additionally, in violation of plaintiff's exclusive right to prepare derivatives, defendant prepared derivatives of the sculpture, including a flyer, without plaintiff's permission ...

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