United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE JUDGE
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
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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.
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.
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.
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.
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.
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
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.
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
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 ...