Gibson et al v. White's Place, LLC et al

Filing 80

ORDER denying 29 Motion to Dismiss for Failure to State a Claim; denying 30 Motion to Dismiss for Failure to State a Claim. Plaintiffs are directed to amended their complaint not later than 10/16/2017; Defendants are directed to file an answer not later than 11/13/2017; not later than 10/16/2017 the parties shall submit a revised case management report. Signed by Judge Timothy J. Corrigan on 9/20/2017. (Attachments: # 1 Case Management Report Form) (JJB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CIELO JEAN GIBSON, MARKETA
KAZDOVA, MAYSA QUY, PAOLA
CANAS, SARA UNDERWOOD,
TIFFANY TOTH, and URSULA
MAYES,
Plaintiffs,
v.

Case No. 3:16-cv-392-J-32JBT

WHITE’S PLACE, LLC and
MICHAEL TOMKOVICH,
Defendants.

PAOLA CANAS, LINA POSADA,
JESSICA BURCIAGA, JAIME
EDMONDSON, and ROSIE JONES,
Plaintiffs,
v.

Case No. 3:16-cv-393-J-32JRK

FLASH DANCERS, INC. and
MICHAEL TOMKOVICH,
Defendants.

BROOKE TAYLOR aka Brooke
Johnson, LAURIE ANN YOUNG,
MALU LUND, SARA

UNDERWOOD, and JAMIE
EASON aka Jamie Middleton,
Plaintiffs,
v.

Case No. 3:16-cv-394-J-32JRK

M.T. PRODUCTIONS IN
JACKSONVILLE, INC. and
MICHAEL TOMKOVICH,
Defendants.

ORDER
This matter is before the Court upon the Consolidated Corporate
Defendants’ Motion to Dismiss the First Amended Complaint (Doc. 29),
Individual Defendant Tomkovich’s Motion to Dismiss the First Amended
Complaint (Doc. 30), and the Consolidated Plaintiffs’ responses in opposition
(Docs. 33 & 34). Originally separate actions, the First Consolidated and
Amended Complaint (“Complaint”) (Doc. 24) combined the three pending
actions within the Middle District of Florida Jacksonville Division. 1

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79).

One of the consolidated cases, 3:16-cv-392-J-32JRK, has now settled. (Doc.

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I.

BACKGROUND
This action arises out of Defendants’ alleged unauthorized use and theft

of Plaintiffs’ images and likenesses to advertise their businesses. According to
the Complaint, Plaintiffs are professional models who earn their living “by
promoting [their] image and likeness to select clients . . . .” (Doc. 24 at ¶ 50).
Each Corporate Defendant is a Florida business “that engages in the business
of entertaining its patrons with nude and/or semi-nude dancing and alcohol.”
(Doc. 24 at ¶¶ 32, 36, 40). Tomkovich is the President and Director of each
Corporate Defendant and maintains “operational and managerial control and
responsibility over the business operations of, and decision-making authority
for [Corporate Defendants’]. . . promotional, advertising, marketing, and
endorsement activities . . . .” (Doc. 24 at ¶¶ 44–45).
The Complaint contains the same seven counts by all fifteen plaintiffs
against the various defendants. Plaintiffs seek compensation for: false
advertising violations under the Lanham Act, 15 U.S.C. § 1125(a) (Count I);
false endorsement violations under the Lanham Act, 15 U.S.C. § 1125(a) (Count
II); violations of the right to publicity and unauthorized misappropriation under
Florida Statute Section 540.08 (Count III); violations of the common law right
to publicity and unauthorized misappropriation (Count IV); violations of
Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), Florida
Statute Section 501.204 (Count V); civil theft violations under Florida Statute
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Sections 812.014 and 772.11 (Count VI); and unjust enrichment (Count VII).
(Doc. 24 at ¶¶ 258–1559).
The Complaint alleges that Defendants used Plaintiffs’ images in
different advertising materials, commonly on social media. (Doc. 24 at ¶ 1).
Defendants never received Plaintiffs’ consent to use the images. (Doc. 24 at ¶ 4).
Plaintiffs sent Defendants cease and desist letters, which did not stop the
allegedly unauthorized use of the images. (Doc. 24 at ¶ 13).
The Corporate Defendants have moved to dismiss all counts of the
complaint for failure to state a claim upon which relief can be granted. (Doc.
29). Corporate Defendants also allege that this Court should not exercise
supplemental jurisdiction over Plaintiffs’ state law claims. (Doc. 29 at 15).
Additionally, Tomkovich moves to dismiss all claims because he should not be
held individually liable as an officer and manager of the Corporate Defendants.
(Doc. 30).
Throughout the Middle District, and elsewhere in Florida, courts have
handled a plethora of similar cases involving many of the same plaintiffs,
defendants, lawyers, and claims. Although not factually identical, the claims
and arguments in those cases are very similar to those here. Since most of the
issues before this Court have already been decided, this Court will adopt
portions of those opinions where appropriate. See, e.g., Gibson v. Resort at
Paradise Lakes, LLC, No. 8:16-cv-791-T-36AAS, 2017 WL 3421532, at *1 (M.D.
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Fla. Aug. 9, 2017); Edmondson v. 2001Live, Inc, 8:16-cv-3243-T-17AEP, Doc. #
40, at 1 (M.D. Fla. July 25, 2017); Lancaster v. The Bottle Club, LLC., 8:17-cv634-T-33JSS, 2017 WL 3008434, at *1 (M.D. Fla. July 14, 2017); Krupa v.
Platinum Plus, LLC, 8:16-cv-3189-T-33MAP, 2017 WL 1050222, at *1 (M.D.
Fla. Mar. 20, 2017); Burciaga v. Gold Club Tampa, Inc., 8:16-cv-790-T-27JSS,
Doc. # 35, at 1 (M.D. Fla. Dec. 28, 2016); Edmondson v. Caliente Resorts, LLC,
No. 8:15-cv-2672-T-23TBM, 2016 WL 1756070, at *1 (M.D. Fla. May 3, 2016).
II.

LEGAL STANDARD
To survive a motion to dismiss, the complaint must include a “short plain

statement of the claim showing that the pleader is entitled to relief.” Ashcroft
v. Iqbal, 556 U.S. 662, 677–78 (2009). When ruling on a motion to dismiss, the
court accepts as true all the allegations in the complaint and construes them in
the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372
F.3d 1250, 1262 (11th Cir. 2004). However, “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Thus, the complaint must state a plausible
claim for relief to survive a motion to dismiss. Iqbal, 556 U.S. at 679.
III.

DISCUSSION
A. Claims under the Lanham Act
The Lanham Act states:

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(1) Any person who, on or in connection with any goods or services,
or any container for goods, uses in commerce any word, term,
name, symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact, or
false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of such
person with another person, or as to the origin, sponsorship,
or approval of his or her goods, services, or commercial
activities by another person, or
(B) in commercial advertising or promotion, misrepresents
the nature, characteristics, qualities, or geographic origin of
his or her or another person's goods, services, or commercial
activities,
shall be liable in a civil action by any person who believes that he
or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a). Thus, Section 1125(a) creates two separate bases of
liability:

false

advertising,

§ 1125(a)(1)(B)

and

false

endorsement,

§ 1125(a)(1)(A). Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.
Ct. 1377, 1384 (2014). Plaintiffs allege both false advertising and false
endorsement. (Doc. 24).
1.

False Advertising

Defendants contend that Plaintiffs have not asserted facts sufficient to
support a false advertising claim under the Lanham Act because, among other
reasons, no consumer would honestly expect to find any of the Plaintiffs at
Defendants’ strip clubs. (Doc. 29 at 5–8). Several other cases within the Middle
District of Florida have decided the same issue with similar plaintiffs,
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defendants, and factual backgrounds. Each held that the complaint was
sufficient to withstand a motion to dismiss. This Court agrees with the
reasoning of those other courts and denies Defendants’ motion to dismiss the
false advertising claim under the Lanham Act. See, e.g., Bottle Club, 2017 WL
3008434, at *4–5; Krupa, 2017 WL 1050222, at *3–4; Burciaga, Doc. # 35, at 3–
5.
2.

False Endorsement

Similar to the previous claim, Defendants assert that Plaintiffs’ pleading
fails to allege facts to make out a plausible claim for false endorsement. (Doc.
29 at 8–15). Again, several courts within the Middle District of Florida have
ruled on a motion to dismiss a false endorsement claim based on a similar
factual backdrop. However, unlike the false advertising rulings, these decisions
have not been unanimous. In Burciaga, the court held that Plaintiffs “do not
allege that their personas are sufficiently distinctive to be protected as common
law marks.” Burciaga, Doc. # 35 at 6. To the contrary, Bottle Club and Krupa
held that the plaintiffs’ allegations of substantial modeling careers and social
media followings coupled with their use of social media to advertise, were
sufficient to survive a motion to dismiss. Bottle Club, 2017 WL 3008434, at *6–
7; Krupa, 2017 WL 1050222, at *5–6. This Court agrees with the reasoning in
Bottle Club and Krupa with respect to the false endorsement claims. See Bottle
Club, 2017 WL 3008434, at *6–7; Krupa, 2017 WL 1050222, at *5–6.
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B.

Supplemental Jurisdiction

Defendants urge this Court to follow two Southern District of Florida
cases that, based on similar pleadings, declined to accept supplemental
jurisdiction of all state law claims. See (Doc. 29 at 15–16) (citing Canas v. S&J
Crazy Lizards Entm’t, No. 9:16-cv-80902-WJZ, Doc. # 6 (S.D. Fla., June 14,
2016); Edmonson v. Velvet Lifestyles, LLC, No. 1:15-cv-24442-JAL, Doc. # 77,
(S.D. Fla., Sept. 8, 2016)). For the reasons stated by Judge Covington in Krupa,
this Court will decline Defendants’ invitation and will maintain supplemental
jurisdiction over all of the state law claims. See Krupa, 82017 WL 1050222, at
*6.
C.

State Law Claims
1.
Florida Statute Section 540.08
Publication of Name or Likeness

–

Unauthorized

Defendants’ attempt to dismiss Plaintiffs’ unauthorized publication of
likeness claim relies on the same arguments rejected in many of the above listed
cases—“after limited discovery, it shall be shown that Plaintiffs’ signed releases
and gave up all rights in the subject photograph(s).” (Doc. 29 at 16); see Krupa,
2017 WL 1050222, at *6; Caliente Resorts, 2016 WL 1756070, at *1. For the
reasons stated in Krupa and Caliente Resorts, Defendants’ motion to dismiss
the claims based on Section 540.08, Florida Statutes, is denied. See Krupa, 2017
WL 1050222, at *6; Caliente Resorts, 2016 WL 1756070, at *1.

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2.
Common Law Right of Publicity and Unauthorized
Misappropriation of Name or Likeness
For the reasons stated by Judge Covington in her well-reasoned analysis,
the motion to dismiss Plaintiffs’ claims for common law right to publicity and
unauthorized misappropriation of name or likeness is denied. See Krupa, 2017
WL 1050222, at *7.
3.
Florida’s Deceptive and Unfair Trade Practices Act
(“FDUTPA”)
Defendants move to dismiss the FDUTPA claim on two grounds: (1)
Plaintiffs’ are not consumers and thus lack standing to allege FDUTPA
violations, and (2) Plaintiffs have failed to allege actual damages. (Doc. 29 at
18–19).
Whether a FDUTPA claim exists under these facts has been the subject
of extensive analysis by courts within the Middle District. 2 Since the issue
would be better addressed on a developed record, this Court will deny
Defendants’ motion to dismiss the FDUTPA claims.

For conflicting views on standing among similar cases within the Middle
District, compare Gibson, 2017 WL 3421532, at *3–6 (holding that a similar group of
plaintiffs lacked standing to sue under FDUTPA because they were not consumers)
with Burciaga, Doc. # 35, at 8–9 (holding that a non-consumer does have standing to
sue under FDUTPA). For conflicting views on actual damages among similar cases
within the Middle District, compare Burciaga, Doc. # 35, at 8–9 (stating that the
plaintiffs had sufficiently pled actual damages), with 2001Live, Doc. # 40, at 3–6
(holding that the damages alleged are consequential and unrecoverable under
FDUTPA).
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4.

Civil Theft Under Florida Statute Section 772.11

Defendants’ motion to dismiss Plaintiffs’ Civil Theft claims is denied. The
Court adopts Judge Covington’s analysis of Plaintiffs’ civil theft claims in
Krupa. 2017 WL 1050222, at *8.
5.

Unjust Enrichment

Plaintiffs have alleged a plausible claim for unjust enrichment. An unjust
enrichment claim has three elements: “(1) plaintiff has conferred a benefit on
the defendant, who has knowledge thereof; (2) defendant voluntarily accepts
and retains the benefit conferred; and (3) the circumstances are such that it
would be inequitable for the defendant to retain the benefit without paying the
value thereof to the plaintiff.” Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP,
137 So. 3d 1081, 1094 (Fla. 3d DCA 2014).
Defendants argue that Plaintiffs’ have not alleged sufficient facts to state
a cause of action for unjust enrichment. (Doc. 29 at 22). This Court disagrees.
“While each specific claim for unjust enrichment . . . alleges, in a terse fashion,
facts bordering on legal conclusions, the Complaint, when read as whole, alleges
enough facts to give rise to a plausible claim to relief for unjust enrichment. . . .”
Krupa. 2017 WL 1050222, at *8. Therefore, Defendants’ motion to dismiss
Plaintiffs’ unjust enrichment claims is denied.

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D.

Tomkovich’s Individual Liability

In a separate motion to dismiss, Tomkovich asserts that he cannot be held
individually liable for any of Plaintiffs’ claims. (Doc. 30 at 4). The Court denies
Tomkovich’s motion. In support of this ruling, the Court adopts the reasoning
of Section III.B in Gibson, 2017 WL 3421532, at *2–3.
IV.

CONCLUSION
Accordingly, it is hereby

ORDERED:
1. Consolidated Corporate Defendants’ Motion to Dismiss the First
Amended Complaint (Doc. 29) is DENIED.
2. Individual Defendant Michael Tomkovich’s Consolidated Motion to
Dismiss First Amended Complaint (Doc. 30) is DENIED.
3. Judge Merryday, in Caliente Resorts, ordered Plaintiffs to amend their
complaint to “present in a single count the same claim for each plaintiff.” 2016
WL 1756070, at *5. Here, the Complaint also fails to comply with Rule 8(a),
Federal Rules of Civil Procedure, requiring “a short plain statement of the claim
showing that the pleader is entitled to relief.” Therefore, not later than October
16, 2017, Plaintiffs are required to amend the complaint so that each claim is

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represented in a single count on behalf of all Plaintiffs. 3 Any other additions or
changes to the complaint require permission from this Court. Not later than
November 13, 2017, Defendants shall file their Answer to the newly amended
complaint.
4. Not later than October 16, 2017, the parties will submit a revised case
management report (CMR form attached) and further advise the Court whether
they want to engage in another mediation at this time.

DONE AND ORDERED in Jacksonville, Florida this 20th day of
September, 2017.

Attached:
Case Management Report Form
Copies:
Counsel of record

Realleging certain facts from the first 257 paragraphs of the complaint would
resolve any potential issue of having the same plaintiffs assert claims against different
defendants in the same count.
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