Krupa et al v. Platinum Plus, LLC
Filing
22
ORDER: Defendant Platinum Plus, LLC's Motion to Dismiss Complaint (Doc. # 11 ) is GRANTED IN PART AND DENIED IN PART. In particular, Platinum Plus's Motion is denied, except as to Plaintiffs' FDUTPA claims. The claims brought unde r FDUTPA are dismissed for failure to allege actual damages. However, the Plaintiffs are granted to leave to amend so that they may attempt to allege actual damages. Plaintiffs shall file an amended complaint consistent with this Order by March 29, 2017. Signed by Judge Virginia M. Hernandez Covington on 3/20/2017. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOANNA KRUPA, et al.,
Plaintiffs,
v.
Case No. 8:16-cv-3189-T-33MAP
PLATINUM PLUS, LLC,
Defendant.
_____________________________/
ORDER
This matter comes before the Court in consideration of
Defendant Platinum Plus, LLC’s Motion to Dismiss Complaint
(Doc. # 11), filed on February 14, 2017. Plaintiffs Joanna
Krupa and Lina Posada filed a response in opposition on
February 28, 2017. (Doc. # 16). For the reasons that follow,
the Motion is granted in part as detailed below.
I.
Background
Platinum Plus is an artificial entity that “has held
itself out as a strip club” and “does business under the names
of Pink Pony Tampa, Pink Pony Nude Show Club, Pink Pony
Showgirls, and Platinum Showgirls.” (Doc. # 1 at ¶¶ 17-18).
To advertise its business, Platinum Plus utilizes several
social-media platforms, such as Facebook and Twitter, and
operates its own website. (Id. at ¶ 19).
Plaintiffs are models living in California who earn
their respective livings “by promoting [their] image[s] and
likeness[es] to select clients, commercial brands, media and
entertainment
outlets,
as
well
as
relying
on
[their]
reputation[s] and own brand[s] for modeling, acting, hosting,
and other opportunities.” (Id. at ¶¶ 15-16, 25). Models, such
as Plaintiffs, work as independent contractors for different
agents or entities. (Id. at ¶ 30). But, before agreeing to
work with an agent or entity, Plaintiffs “vet” the agent or
entity, which entails determining if the person or entity
seeking a license and release of the model’s image, likeness
or identity (1) is reputable, (2) has reputable products or
services, and (3) would enhance or harm the model’s stature
or reputation through association with that person or entity.
(Id. at ¶ 31a).
A
model’s
“reputational
information
is
used
in
negotiating compensation[,] which typically turns on the work
a model is hired to do, the time involved, travel and how her
image is going to be used . . . .” (Id. at ¶ 31b). “[T]o
protect her reputation and livelihood, a model or [her] agent
carefully and expressly defines the terms and conditions of
use” of the model’s image, likeness or identity. (Id. at ¶
31c).
“[T]he
entire
negotiated
2
deal
is
reduced
to
and
memorialized in an integrated, written agreement . . . .”
(Id. at ¶ 31d).
If a model endorses, promotes, advertises or markets the
“wrong” product, service, or venture, or works in or is
affiliated with a disreputable industry, the model’s career
can be negatively impacted by “limiting or foreclosing future
modeling or brand endorsement opportunities.” (Id. at ¶ 32).
So,
if
“a
compromising
model
chose
to
engagement
—
jeopardize
such
as
her
career
appearing
for
in
a
an
advertisement for an ‘all nude[,] all friction strip club’ —
the fee she would charge would necessarily far exceed the fee
typically charged for more . . . reputable work.” (Id. at ¶
33).
As
to
Plaintiffs’
work
history,
Krupa
is
a
model,
actress, and dancer. (Id. at ¶ 38). Krupa has appeared on
magazines such as Personal, Envy, Maxim, and Playboy; she was
named “Sexiest Swimsuit Model in the World” and for two years
in a row she was voted Germany’s “Maxim Model of the Year”;
she appeared in Max Havoc: Curse of the Dragon, Superstars,
Dancing with the Stars, The Real Housewives of Miami, and is
the head judge of Poland’s Next Top Model. (Id.). Krupa also
maintains a substantial following on social media with almost
870,000 followers on Instagram, almost 1 million followers on
3
Twitter, and has over 1 million likes on Facebook. (Id.).
Notably, “the number of online ‘followers’ or ‘likes’ is a
strong factor in determining the earning capacity of a model.”
(Id. at ¶ 38 n.1).
For her part, Posada is a fashion model and designer,
“best known for her appearances in the Bésame and Espiral
Lingerie collection photo shoots.” (Id. at ¶ 48). In addition,
Posada modeled for Paradizia Swimwear, Babalú Swimwear, Irgus
Swimwear, Ujeans, and “many others.” (Id.). Posada, too,
maintains a sizeable following on social media with almost
640,000 views on YouTube, almost 5,500 Twitter followers,
over 6,000 followers on Facebook, and almost 75,000 Instagram
followers. (Id.).
Platinum Plus allegedly used Krupa’s image, likeness,
and/or identity, see (Doc. # 1-1), to advertise and promote
its “‘Super Sexy Saturday’ events, ‘2-4-1 Dance & Shower
Shows’ and ‘Formerly Pink Pony Nude Show Club.’” (Doc. # 1 at
¶ 40). Likewise, Platinum Plus allegedly used Posada’s image,
likeness, and/or identity, see (Doc. # 1-2), to advertise and
promote
a Tampa Bay’s “All Nude[,] All Friction Strip
Club,” . . . Pink Pony’s Facebook page, Two Asians
& a Grill Premier Hibachi Grill, “Always hiring
dancers! No experience or nudity required,” “5 Star
Full Nude Club,” private rooms, 5000 square foot
4
gentlemen’s club . . ., “over 100 Tampa Bay’s most
sexiest [sic] nude dancers,” “30 Lap Dance Rooms,”
“Hourly
Shower
Showers
&
Hourly
Dungeon
Exhibitions,” VIP parties, and events.
(Doc. # 1 at ¶ 50). Plaintiffs’ images, likenesses, and/or
identities “are being used as advertising, on social media,
as a coupon, and for branding purposes.” (Id. at ¶ 41); see
also (Id. at ¶ 51) (alleging Posada’s image, likeness, and/or
identity
is
being
used
additionally
as
“a
third
party
promotion and for extra usage”). However, neither Plaintiff
was hired by or contracted with Platinum Plus to advertise,
promote, market or endorse Platinum Plus’s business. (Id. at
¶¶ 42, 52). In addition, Plaintiffs “never gave permission,
or assigned, licensed or otherwise consented to [Platinum
Plus] using [their] image[s], likeness[es] or identit[ies] .
. . .” (Id. at ¶¶ 44, 54). And, Platinum Plus did not pay
Plaintiffs for the use of their respective images, likenesses
or identities. (Id. at ¶¶ 45, 55).
After discovering the unauthorized use of their images,
likenesses,
and/or
identities,
Plaintiffs’
counsel
sent
Platinum Plus a cease-and-desist letter, which contained a
confidential settlement agreement. (Id. at ¶ 58; Doc. # 13). Platinum Plus “failed and refused to compensate [Krupa
and Posada] for the unauthorized use of their images or to
5
remove all of the infringing imagery from one or more social
media sites controlled by it.” (Doc. # 1 at ¶ 65).
Accordingly,
Plaintiffs
brought
the
instant
action
against Platinum Plus on November 14, 2016. (Doc. # 1). The
Complaint asserts the same claims for each Plaintiff; namely,
false advertising under the Lanham Act, 15 U.S.C. § 1125(a),
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., 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.
Platinum Plus now moves to dismiss the Complaint for a
host
of
reasons.
(Doc.
#
11).
Plaintiffs
responded
in
opposition. (Doc. # 16). The Motion is ripe for review.
II.
Legal Standard
On a motion to dismiss, this 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). Further,
this
Court
favors
the
plaintiff
6
with
all
reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (stating “[o]n a motion to dismiss, the facts
stated
in
[the]
complaint
and
all
reasonable
inferences
therefrom are taken as true”). However:
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual 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) (internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986).
III. Analysis
A.
Claims under the Lanham Act
Under the Lanham Act,
(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
7
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.
distinct
§
1125(a).
bases
1125(a)(1)(A),
of
and
“Section
1125(a)
liability:
false
thus
false
advertising,
creates
association,
§
two
§
1125(a)(1)(B).”
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134
S. Ct. 1377, 1384 (2014). Plaintiffs bring claims for false
advertising and false association.
1.
False Advertising
To show a defendant engaged in false advertising, a
plaintiff “must plead (and ultimately prove) an injury to a
commercial
interest
in
sales
or
business
reputation
proximately caused by the . . . misrepresentations.” Duty
Free Ams., Inc. v. Estee Lauder Cos., Inc., 797 F.3d 1248,
1277 (11th Cir. 2015) (quoting Lexmark Int’l, 134 S. Ct. at
1395). And, to prove the statements caused the requisite
injury, a plaintiff must show
8
(1) the . . . statements were false or misleading;
(2) the statements deceived, or had the capacity to
deceive, consumers; (3) the deception had a
material effect on the consumers’ purchasing
decision; (4) the misrepresented service affects
interstate commerce; and (5) it has been, or likely
will be, injured as a result of the false or
misleading statement.
Id. (quoting Sovereign Military Hospitaller Order of Saint
John of Jerusalem of Rhodes and of Malta v. Fla. Priory of
the Knights of Hospitallers of the Sovereign Order of Saint
John of Jerusalem, Knights of Malta, the Ecumenical Order,
702 F.3d 1279, 1294 (11th Cir. 2012)).
The
first
element,
that
a
statement
is
false
or
misleading, “is satisfied if the challenged advertisement is
literally
false,
or
if
the
challenged
advertisement
is
literally true, but misleading.” Johnson & Johnson Vision
Care, Inc. v. 1–800 Contacts, Inc., 299 F.3d 1242, 1247 (11th
Cir. 2002) (citation omitted). If the statement is literally
false, no evidence of consumer deception is needed. Id. But,
if the statement is only misleading, the plaintiff must
present evidence of deception. Id.
A plaintiff must also establish materiality. That is, a
“plaintiff must establish that ‘the defendant’s deception is
likely
to
influence
the
purchasing
decision’”
consumer. Id. at 1250 (citation omitted).
9
of
the
Relying
primarily
on
Kournikova
v.
General
Media
Communications, Inc., 278 F. Supp. 2d 1111, 1117 (C.D. Cal.
2003), Platinum Plus argues Plaintiffs failed to state a claim
for relief by failing to allege that they compete with
Platinum Plus in the same market place or that they have
suffered a competitive injury. (Doc. # 11 at 7-9). The
arguments asserted by Platinum Plus are unpersuasive.
In
Kournikova,
a
popular
and
internationally-known
women’s tennis player sued the publisher of Penthouse when it
published
“partially
nude
photographs
of
another
woman
falsely identified as Kournikova.” 278 F. Supp. 2d at 1113.
Kournikova
brought
suit
for,
among
other
things,
false
advertising under the Lanham Act and the defendant moved for
summary
judgment,
arguing
in
part
that
Kornikova
lacked
standing to bring a false advertising claim because she was
not a competitor of Penthouse. Id. at 1115. On review, the
court in Kournikova, contrary to Platinum Plus’s assertion,
found Kournikova to be a competitor with the publisher of
Penthouse. Id. at 1118. The court noted that while Kournikova
was a professional tennis player, she also “pursue[d] a
(possibly more successful) career as a model and sex symbol
and likewise markets videos and calendars,” and that both
Kournikova
and
Penthouse
sold
10
those
products
over
the
internet and to a variety of magazines and retailers. Id. The
court ultimately found Kournikova and Penthouse to “compete
for the same dollars from the same target audience,” at least
in “some of their commercial activities.” Id.
As the court in Kornikova found “a model and sex symbol”
who marketed videos and calendars to be a competitor of
Penthouse, this Court likewise finds that, based on the
allegations in the Complaint, Plaintiffs, at least in some
aspects of their careers, compete for the same dollars of the
same target audience as Platinum Plus. (Doc. # 1 at ¶¶ 38,
48). Furthermore, the Complaint alleges Platinum Plus used
the
same
methods
of
distribution
(social
media)
as
did
Plaintiffs. (Id. at ¶¶ 38, 40, 41, 48, 50, 51). Thus, the
Court finds Platinum Plus’s argument unpersuasive.
Platinum Plus next contends the Complaint should be
dismissed because Plaintiffs failed to introduce evidence of
injury. (Doc. # 11 at 8). Platinum Plus’s argument, however,
is premature. Although Plaintiffs will ultimately have to
prove
the
introduction
elements
of
of
false
evidence,
at
advertising
this
through
preliminary
the
stage
Plaintiffs need only plead allegations giving rise to a
plausible claim to relief. Given the premature nature of
Platinum Plus’s argument, which is more appropriately raised
11
at summary judgment, the Court declines to dismiss the false
advertising claim. It is also worth noting that a fair reading
of the Complaint shows Plaintiffs allege they have been
damaged in the following aspects: damage to their respective
brands,
which
capacity,
and
“encouraged[]
in
turn
Platinum
or
negatively
Plus’s
facilitated
affects
putative
future
earning
misappropriation
other”
entities
to
misappropriate the Plaintiffs’ images. (Doc. # 1 at ¶¶ 2457).
2.
Platinum
False Association
Plus
argues
Plaintiffs
failed
to
plead
sufficient facts demonstrating confusion. (Doc. # 11 at 913). The thrust of Platinum Plus’s argument as to the lack of
confusion is that “Plaintiffs are not ‘recognizable’” and so
“there can simply be no ‘confusion’ on the bare fact that
photos of ‘pretty faces’ were used to promote a Gentlemen’s
Club.” (Id. at 12).
To prevail on a claim of trademark infringement, a
plaintiff “must show (1) that it had trademark rights in the
mark or name at issue and (2) that the other party had adopted
a mark or name that was the same, or confusingly similar to
its mark, such that consumers were likely to confuse the two.”
Suntree Techs., Inc. v. Ecosense Int’l, Inc., 693 F.3d 1338,
12
1346 (11th Cir. 2012) (citation omitted); see also Univ. of
Ala. Bd. of Trs. v. New Life Art, Inc., 683 F.3d 1266, 1278
(11th Cir. 2012) (“we have never treated false endorsement
and
trademark
infringement
claims
as
distinct
under
the
Lanham Act”) (citation omitted).
To satisfy the first element of § 43(a)—proof of a
valid trademark—a plaintiff need not have a
registered mark. . . . “[T]he use of another’s
unregistered, i.e., common law, trademark can
constitute a violation of § 43(a) where the alleged
unregistered trademarks used by the plaintiff are
so associated with its goods that the use of the
same
or
similar
marks
by
another
company
constitutes a false representation that its goods
came from the same source.”
Tana v. Dantanna’s, 611 F.3d 767, 773 (11th Cir. 2010)
(citation omitted).
The
Eleventh
Circuit
recognizes
four
categories
of
distinctiveness:
“(1) generic—marks that suggest the basic nature of
the product or service; (2) descriptive—marks that
identify the characteristic or quality of a product
or service; (3) suggestive—marks that suggest
characteristics of the product or service and
require an effort of the imagination by the
consumer in order to be understood as descriptive;
and (4) arbitrary or fanciful—marks that bear no
relationship to the product or service, and the
strongest category of trademarks.”
Id. at 774 (citation omitted). The third and fourth categories
are distinctive enough to receive protection, the second can
be, and the first is generally not enough. Id.
13
To evaluate confusion, the Eleventh Circuit uses the
following multifactor test:
(1) strength of the mark alleged to have been
infringed; (2) similarity of the infringed and
infringing marks; (3) similarity between the goods
and services offered under the two marks; (4)
similarity of the actual sales methods used by the
holders of the marks, such as their sales outlets
and customer base; (5) similarity of advertising
methods; (6) intent of the alleged infringer to
misappropriate the proprietor’s good will; and (7)
the existence and extent of actual confusion in the
consuming public.
Id. at 774-75. The strength of a descriptive mark, in turn,
is measured by
(1) “the length and nature of the name’s use,” (2)
“the nature and extent of advertising and promotion
of the name,” (3) “the efforts of the proprietor to
promote a conscious connection between the name and
the business,” and (4) “the degree of actual
recognition by the public that the name designates
the proprietor’s product or service.”
Id. at 776.
Platinum
Plus
does
not
analyze
Plaintiffs’
false-
association claims in the light of the Eleventh Circuit
jurisprudence summarized above. Rather, Platinum Plus focuses
primarily on case law from the Ninth Circuit Court of Appeals
and district courts therein. (Doc. # 11 at 9-12). Of course,
such case law does not bind this Court, which sits in the
Eleventh Circuit.
14
After reviewing the Complaint, the Court finds that,
under Eleventh Circuit jurisprudence, Plaintiffs have alleged
sufficient facts to state a plausible claim for relief.
Plaintiffs
allege
the
marks
infringed
upon
were
their
respective images or likenesses and, to show the degree of
protection warranted for those marks, they allege the number
of followers on social media, which is substantial, and the
extensive work they have done in the modeling industry. (Doc.
# 1 at ¶¶ 34, 38, 40-41, 48, 50-51). In addition, Plaintiffs
allege they use the same methods of advertising, social media,
as Platinum Plus. (Id. at ¶¶ 41, 51). In short, when taken as
a whole, Plaintiffs alleged enough to survive Platinum Plus’s
Motion. Whether Plaintiffs can prove all that needs to be
shown under Eleventh Circuit case law remains to be seen and
Platinum Plus is free to argue they have not at summary
judgment or trial.
B.
Supplemental Jurisdiction
Platinum Plus further argues that, even if the Court
does not dismiss the claims under the Lanham Act, the Court
should decline to exercise supplemental jurisdiction over the
state-law claims. (Doc. # 11 at 13-15). Plaintiffs argue the
exercise of supplemental jurisdiction is appropriate. (Doc.
# 16 at 13).
15
Federal
courts
are
courts
of
limited
jurisdiction.
Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
presumption,
in
fact,
jurisdiction
in
a
demonstrated
that
is
that
a
federal
particular
case
until
jurisdiction
over
the
court
it
has
subject
The
lacks
been
matter
exists. United States v. Rojas, 429 F.3d 1317, 1320 (11th
Cir. 2005).
Nevertheless, the exercise of jurisdiction is
proper over claims to which the Court’s jurisdiction would
ordinarily not extend if they form part of the same case or
controversy as “any civil action of which the district courts
have original jurisdiction.” 28 U.S.C. § 1367(a). But, as
codified in 28 U.S.C. § 1367(c), district courts may decline
to exercise supplemental jurisdiction over a state law claim
when such claim (1) raises a novel or complex issue of state
law or (2) would substantially predominate over the federal
claim forming the basis of the court’s original subjectmatter jurisdiction.
After
reviewing
the
Complaint,
the
Court
finds
it
appropriate to exercise supplemental jurisdiction over the
state-law claims. The state-law claims arise from the same
nucleus of operative facts as the federal claims and the
state-law claims neither are novel or complex, nor do they
substantially predominate over the federal claims. Indeed,
16
one would expect these types of claims, which all stem from
the same alleged misappropriation of Plaintiffs’ likenesses
and
images,
to
be
tried
together.
Accordingly,
Platinum
Plus’s Motion is denied to the extent it requests the Court
to not exercise supplemental jurisdiction.
C.
State-Law Claims
1.
Section 540.08, Fla. Stat.
Platinum Plus’s argument that Plaintiffs failed to state
a claim for violations of section 540.08, Fla. Stat., is based
on facts not pled in the Complaint. To be sure, Platinum Plus
argues: “based on ‘industry standards’ and the fact that every
photograph is clearly professionally taken, after limited
discovery, it shall be shown that Plaintiffs’ signed releases
and gave up all rights in the subject photograph(s).” (Doc.
# 11 at 15) (bolding added).
As
to
Complaint
industry
give
rise
standards,
to
the
the
allegations
reasonable
in
inference
the
that
Plaintiffs would not have associated with Platinum Plus.
(Doc. # 1 at ¶¶ 26-33). Moreover, Platinum Plus’s argument
that only “after limited discovery” will it be able to show
a lack of standing demonstrates the weakness of its position.
Simply
put,
Platinum
Plus
seeks
dismissal
on
facts
not
contained within the four corners of the Complaint. The Motion
17
is therefore denied with respect to the claims for violations
of section 540.08, Fla. Stat.
2.
There
are
Common-Law Invasion of Privacy
four
theories
to
establish
invasion
of
privacy:
(1) appropriation—the unauthorized use of a
person’s name or likeness to obtain some benefit;
(2)
intrusion—physically
or
electronically
intruding into one’s private quarters; (3) public
disclosure of private facts—the dissemination of
truthful private information which a reasonable
person would find objectionable; and (4) false
light in the public eye—publication of facts which
place a person in a false light even though the
facts themselves may not be defamatory.
Agency for Health Care Admin. v. Associated Indus. of Fla.,
Inc., 678 So. 2d 1239, 1252 n.20 (Fla. 1996). Plaintiffs
proceed under the first theory—the unauthorized use of a
person’s name or likeness to obtain some benefit.
The crux of Platinum Plus’s argument is that the pictures
depicting
Plaintiffs’
likenesses
were
already
widely
published and, therefore, its republication of the pictures
is not actionable. (Doc. # 11 at 16) (citing Heath v. Playboy
Enters., Inc., 732 F. Supp. 1145, 1148 (S.D. Fla. 1990)).
Platinum Plus’s reliance on Heath, however, is misplaced. In
Heath, the court was faced with a claim for public disclosure
of private facts. 732 F. Supp. at 1148 (“the Court has
18
identified the publication of private facts as the only theory
relevant to the facts before us.”). Furthermore, the pictures
at issue in Heath were taken in public. Id. at 1148-49. In
such instances, republication is a defense.
In contrast, here, the Court is faced with a claim of
unauthorized use of a person’s name or likeness to obtain
some benefit. Heath is therefore inapposite. In addition,
Platinum Plus has not pointed to any authority supporting the
proposition that republication is a defense to a claim for
unauthorized use of a person’s name or likeness to obtain
some benefit. As such, the Motion is denied with respect to
the claims for unauthorized use of a person’s name or likeness
to obtain some benefit.
3.
FDUTPA
“‘Although not specifically identified in the statute,
there are three elements that are required to be alleged to
establish a claim pursuant to the FDUTPA: 1) a deceptive act
or unfair practice; 2) causation; and 3) actual damages.’”
Borchardt v. Mako Marine Int’l, Inc., No. 08-61199-CIV, 2009
WL 3856678, at *5 (S.D. Fla. Nov. 17, 2009) (quoting KC
Leisure, Inc. v. Haber, 972 So. 2d 1069, 1073 (Fla. 5th DCA
2008)). Platinum Plus argues that Plaintiffs failed to state
a claim because they are not consumers, nor have they shown
19
actual damages. (Doc. # 11 at 17-18). The Court need not reach
the issue of whether a plaintiff must be a consumer or merely
a person to bring suit under FDUTPA because Plaintiffs failed
to allege actual damages. (Doc. # 11 at 18).
Relying on BPI Sports, LLC v. Labdoor, Inc., No. 1562212-CIV-BLOOM, 2016 WL 739652 (S.D. Fla. Feb. 25, 2016),
Platinum Plus argues Plaintiffs have asserted what amount
only to consequential damages. In BPI Sports, the court noted
that “harm in the manner of ‘competitive harm, diverted or
lost sales, and harm to the goodwill and reputation of
[plaintiff]” were consequential damages. 2016 WL 739652, at
*6; see also Rollins, Inc. v. Butland, 951 So. 2d 860, 870
(Fla. 2d DCA 2006) (“the recovery afforded under FDUTPA does
not include diminution in value or stigma damages”). As such,
Plaintiffs failed to allege actual damages and the FDUTPA
claims are therefore dismissed. However, such dismissal is
without prejudice and the Plaintiffs are granted leave to
amend so that they may attempt to allege actual damages.
4.
Civil Theft
Platinum Plus first argues Plaintiffs failed to comply
with the notice requirement in section 772.11(1), Fla. Stat.
(Doc. # 11 at 19). Section 772.11(1) requires that “[b]efore
filing an action for damages . . ., the person claiming injury
20
must make a written demand for $200 or the treble damage
amount of the person liable for damages under this section.”
The person upon whom such a demand is made has 30 days to
comply. Fla. Stat. § 772.11(1).
Attached to the Complaint is the cease-and-desist letter
sent to Platinum Plus on February 26, 2016. (Doc. # 1-3).
This
cease-and-desist
letter
contains
a
section
labeled
“NOTICE OF CLAIM FOR CIVIL THEFT,” wherein Plaintiffs state:
In addition, you have violated Florida’s Civil
Theft Statute §772.11 (“Section 772.11”). Under
Section 772.11, any person who proves by clear and
convincing evidence that he or she has been injured
in any fashion by reason of any violation of Florida
Statutes 812.012 – 812.037 or 825.103(1) (civil
theft) is punishable by treble damages (threefold
the actual damages), attorneys’ fees, and court
costs.
(Id. at 8) (bolding in original). Based on the plain language
of the cease-and-desist letter, the Court finds Platinum
Plus’s argument meritless.
Platinum Plus additionally argues Plaintiffs’ claims for
civil theft should be dismissed because they have not pled
felonious intent. (Doc. # 11 at 20). While Plaintiffs will
have to prove the elements of civil theft by the requisite
degree of proof to ultimately prevail, at this preliminary
stage, Florida law does not require them to plead felonious
intent. Pinellas Fed. Credit Union v. Reynolds, No. 8:12-cv-
21
14-T-30MAP, 2012 WL 1069814, at *3 (M.D. Fla. Mar. 29, 2012)
(“PFCU’s arguments are without merit at this stage because,
as Counterclaim Plaintiff points out. . ., Florida law does
not require the pleading of an element of felonious intent in
order
to
state
a
civil
theft
claim.”).
The
Motion
is
accordingly denied with respect to the claims for civil theft.
5.
There
Unjust Enrichment and Conversion
are
three
elements
for
a
claim
of
unjust
enrichment: “(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). And, with respect to conversion, “[i]t is well settled
that a conversion is an unauthorized act which deprives
another of his property permanently or for an indefinite
time.” Senfeld v. Bank of Nova Scotia Tr. Co. (Cayman) Ltd.,
450 So. 2d 1157, 1160-61 (Fla. 3d DCA 1984) (citations and
footnote omitted). “[T]he essence of conversion is not the
possession of property by the wrongdoer, but rather such
possession in conjunction with a present intent on the part
22
of the wrongdoer to deprive the person entitled to possession
of the property, which intent may be . . . shown by demand
and refusal.” Id. at 1161. (footnote omitted).
Platinum Plus argues Plaintiffs failed to allege, indeed
cannot allege, facts as to all the elements for unjust
enrichment and conversion. (Doc. # 11 at 20-21). The Court
disagrees. While each specific claim for unjust enrichment
and conversion alleges, in a terse fashion, facts bordering
on legal conclusions (Doc. # 1 at ¶¶ 140-150, 225-235), the
Complaint, when read as a whole, see, e.g., (Id. at ¶¶ 2-20,
24-57), alleges enough facts to give rise to a plausible claim
to relief for unjust enrichment and conversion. Platinum
Plus’s Motion is therefore denied as to the unjust enrichment
and conversion claims.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant
Platinum
Plus,
LLC’s
Motion
to
Dismiss
Complaint (Doc. # 11) is GRANTED IN PART AND DENIED IN
PART. In particular, Platinum Plus’s Motion is denied,
except
as
to
Plaintiffs’
FDUTPA
claims.
The
claims
brought under FDUTPA are dismissed for failure to allege
actual damages. However, the Plaintiffs are granted to
23
leave to amend so that they may attempt to allege actual
damages.
(2)
Plaintiffs shall file an amended complaint consistent
with this Order by March 29, 2017.
DONE and ORDERED in Chambers in Tampa, Florida, this
20th day of March, 2017.
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