Lancaster et al v. Bottle Club, LLC et al

Filing 46

ORDER: Defendants Susan and Andrew Harrow's Motion to Dismiss First Amended Complaint (Doc. # 41 ) is DENIED. Defendant Bottle Club, LLC's Motion to Dismiss Counts I and VIII (Doc. # 42 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 7/14/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMBER LANCASTER,
et al.,
Plaintiffs,
v.

Case No.: 8:17-cv-634-T-33JSS

THE BOTTLE CLUB, LLC d/b/a
EYZ WIDE SHUT II; EYES WIDE
SHUT, LLC d/b/a EYZ WIDE SHUT;
BYOB CLUB, INC.; ANDREW HARROW;
and SUSAN HARROW,
Defendants.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Defendants Susan and Andrew Harrow’s Motion to Dismiss First
Amended Complaint (Doc. # 41), filed on June 20, 2017, and
Defendant Bottle Club, LLC’s Motion to Dismiss Counts I and
VIII (Doc. # 42), filed on June 22, 2017. Plaintiffs responded
on July 3, 2017. (Doc. ## 44-45). For the reasons that follow,
the Motions are denied.
I.

Background
The twenty Plaintiffs are professional models and/or

actresses

living

across

the

country

and

working

“as

independent contractors for different agents or entities.”
(Doc. # 38 at ¶¶ 59, 64). Each “earns a living by promoting
1

her image and likeness to select clients, commercial brands,
media and entertainment outlets, as well as relying on her
reputation and own brand for modeling, acting, hosting, and
other opportunities.” (Id. at ¶ 59). Each Plaintiff has a
history of successfully selling her image and many have
substantial followings on social media, with “the number of
online followers [being] a strong factor in determining the
model’s popularity, and, thus, earning capacity.” (Id. at ¶¶
69, 80, 91, 102, 113, 124, 135, 146, 157, 168, 179, 191, 202,
213, 224, 235, 246, 257, 268, 279).
For example, Plaintiff Amber Lancaster is an actress and
model, who has “been featured in numerous spreads and fashion
features in magazines, including Maxim, US Weekly, People,
Stylewatch, Life & Style and Star.” (Id. at ¶ 69). Lancaster
“has

over

62,000

Instagram

followers,

80,000

Facebook

followers, and 52,000 Twitter followers.” (Id.).
Because reputation is critical in the modeling industry,
Plaintiffs’ “[e]ndorsing, promoting, advertising or marketing
the ‘wrong’ product, service or corporate venture, or working
in or being affiliated with a disreputable industry can
severely

impact

foreclosing

Plaintiffs’

future

modeling

careers
or

by
brand

limiting

or

endorsement

opportunities.” (Id. at ¶ 67). For that reason, Plaintiffs
2

“vet”

potential

professional

engagements

to

“determin[e]

whether the individual or entity seeking a license and release
of a model’s [i]mage is reputable, has reputable products or
services, and, through affiliation therewith, would either
enhance or harm a model’s stature or reputation.” (Id. at ¶¶
58, 66). Plaintiffs’ “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 ¶ 66). “[T]o protect her
reputation and livelihood, Plaintiffs and/or their agents
carefully and expressly define the terms and conditions of
use” of Plaintiffs’ images. (Id.). “[T]he entire negotiated
deal is reduced to and memorialized in an integrated, written
agreement.” (Id.).
Defendants Andrew and Susan Harrow are officers and
managers of various corporate entities: Defendants the Bottle
Club, LLC, which does business as Eyz Wide Shut II; Eyes Wide
Shut, LLC, which does business as Eyz Wide Shut; and BYOB
Club, Inc. (Doc. # 38 at ¶¶ 41-42). Together, they run Eyz
Wide Shut — “a swingers club that engages in the business of
entertaining its patrons with alcohol, music, hotel rooms,
and several amenities including a nightclub.” (Id. at ¶ 52).
The

Harrows

“had

operational
3

and

managerial

control

and

responsibility over the business operations of, and decisionmaking

authority

relating

to

Eyz

for

Eyz

Wide

Wide

Shut’s

Shut,

including

promotional,

decisions

advertising,

marketing and endorsement activities.” (Id. at ¶ 51).
Defendants maintain a website for Eyz Wide Shut and are
active on social media, “through which they advertise their
businesses,

events,

and

parties

and

frequently

and

continuously post explicit and lewd imagery to depict sex
acts performed at Eyz Wide Shut.” (Id. at ¶ 43). Defendants’
advertising and marketing “occur in and are targeted to
interstate

commerce”

businesses

and

because

events

“Defendants

through

interstate

promote

their

promotions

and

campaigns to target persons from different states throughout
the United States” using the internet, “social media and other
vehicles

of

interstate

commerce

to

advertise,

market,

promote, and entice or lure membership and attendance at Eyz
Wide Shut events.” (Id. at ¶ 302).
In

promoting

Eyz

Wide

Shut,

Defendants

used

each

Plaintiff’s image at least once “in various marketing and
promotional mediums [] such as advertising, on various social
media accounts, as coupons, and for branding purposes.” (Id.
at ¶¶ 72, 83, 94, 105, 116, 127, 138, 149, 160, 171, 183,
194, 205, 216, 227, 238, 249, 260, 271, 282). Plaintiffs were
4

never hired or contracted by Defendants for use of their
images, Defendants did not seek Plaintiffs permission to use
their images, and Plaintiffs were never paid or offered
payment for the use of their images. (Id. at ¶¶ 73-77, 8488, 95-99, 106-10, 117-21, 128-32, 139-43, 150-54, 161-65,
172-76, 184-88, 195-99, 206-10, 217-21, 228-32, 239-43, 25054, 261-65, 272-76, 283-87).
According to Plaintiffs,
Defendants’ false advertising . . . did, in fact,
deceive and/or cause consumer confusion as to
whether Plaintiffs worked at or were otherwise
affiliated with Eyz Wide Shut, endorsed Defendants’
businesses, Eyz Wide Shut or Eyz Wide Shut events
and activities, or consented to or authorized
Defendants’ usage of Plaintiffs’ [i]mages in order
to advertise, promote, and market Defendants’
businesses or Eyz Wide Shut events and activities.
(Id. at ¶ 301). As a result, “Plaintiffs have sustained
injuries to their [i]mages, brands and marketability due to
their affiliation with Eyz Wide Shut.” (Id. at ¶ 13).
The Harrows “personally participated in the decision
making of the creation of the subject advertisements that
were published on Defendants’ website and social media pages
and actually authorized the acts of false advertising and
image misappropriation for commercial benefit.” (Id. at ¶¶
45, 48).

5

After learning about the unauthorized use, Plaintiffs
sent Defendants a cease and desist and a demand letter on
December 8, 2015. (Id. at ¶ 290). But Defendants “failed and
refused to compensate Plaintiffs for the unauthorized use of
their images.” (Id. at ¶ 295).
Then,

on

March

16,

2017,

Plaintiffs

initiated

this

action. (Doc. # 1). After a motion to dismiss was filed (Doc.
# 34), Plaintiffs filed an Amended Complaint on June 6, 2017.
(Doc. # 38). In the Amended Complaint, Plaintiffs named
additional corporate Defendants, BYOB Club, Inc., and Eyz
Wide Shut, LLC. The Amended Complaint asserts the same claims
for

each

Plaintiff;

namely,

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.
(Id.). As of this Order, BYOB Club, Inc. and Eyz Wide Shut,
LLC, have not yet appeared.
The Harrows filed their Motion to Dismiss the Amended
Complaint on June 20, 2017. (Doc. # 41). The Bottle Club’s
6

Motion to Dismiss Counts I and VIII followed on June 22, 2017.
(Doc. # 42). Plaintiffs responded to both Motions on July 3,
2017. (Doc. ## 44-45). The Motions are 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

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). Furthermore, “[t]he scope
7

of

review

must

be

limited

to

the

four

corners

of

the

complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
III. Analysis
The Harrows and the Bottle Club argue that Plaintiffs
have failed to state claims for false advertising or false
endorsement under the Lanham Act. (Doc. # 41 at 7-13; Doc. #
42). The Harrows also argue that Plaintiffs have failed to
plead a basis for their individual liability for all claims.
(Doc. # 41 at 3-6). The Court will address each argument in
turn.
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
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
8

or another person’s goods,
commercial activities,

services,

or

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
liability:

false

1125(a)

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 or endorsement.
1.

False Advertising

To show a defendant engaged in false advertising, a
plaintiff must plead that
(1) the defendant’s 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.
Sovereign

Military

Hospitaller

Order

of

Saint

John

of

Jerusalem of Rhodes & of Malta v. Fla. Priory of Knights
Hospitallers of Sovereign Order of Saint John of Jerusalem,
Knights of Malta, Ecumenical Order, 702 F.3d 1279, 1294 (11th
Cir. 2012).

9

Thus, while both false advertising and false endorsement
claims require as a jurisdictional predicate that the mark at
issue was “use[d] in commerce,” false advertisement claims
also require as a substantive element that the misrepresented
service affects interstate commerce. 15 U.S.C. § 1125(a)(1).
Defendants only argue that Plaintiffs have failed to allege
the substantive interstate commerce element of their false
advertisement claims. (Doc. # 41 at 7-9; Doc. # 42 at 3-5).
The word “commerce” is defined for purposes of the Lanham
Act as “all commerce which may lawfully be regulated by
Congress.” 15 U.S.C. § 1127. The Supreme Court has “identified
three broad categories of activity that Congress may regulate
under its commerce power”: (1) “Congress may regulate the use
of the channels of interstate commerce”; (2) “Congress is
empowered to regulate and protect the instrumentalities of
interstate

commerce,

or

persons

or

things

in

interstate

commerce, even though the threat may come only from intrastate
activities”; and, (3) “Congress’ commerce authority includes
the power to regulate those activities having a substantial
relation

to

interstate

commerce,

.

.

.

,

i.e.,

those

activities that substantially affect interstate commerce.”
United States v. Lopez, 514 U.S. 549, 558-59 (1995).

10

Indeed, “[i]t is well settled that as defined ‘commerce’
includes

any

intrastate

transaction

which

‘affects’

interstate commerce.” Shatel Corp. v. Mao Ta Lumber & Yacht
Corp., 697 F.2d 1352, 1356 (11th Cir. 1983). “Commerce within
the

power

of

Congress

to

control

‘is

not

confined

to

transportation from one State to another, but comprehends all
commercial intercourse between different States and all the
component parts of that intercourse.’” Id. (quoting DahnkeWalker

Co.

“Advertising

v.

Bondurant,

that

257

affects

U.S.

282,

interstate

290

(1921)).

commerce

and

solicitation of sales across state lines or between citizens
of the United States and citizens and subjects of a foreign
nation is therefore commerce within the meaning of the Lanham
Act.” Id.
The

Harrows

and

the

Bottle

Club

argue

the

Amended

Complaint fails to plead that their business substantially
affects interstate commerce. (Doc. # 41 at 7-9). They note
that Plaintiffs’ allegations focus on Defendants’ use of
social

media

to

promote

its

events.

Indeed,

Plaintiffs

allege:
Defendants’
advertisements,
promotions
and
marketing of Eyz Wide Shut and events at Eyz Wide
Shut occur in and are targeted to interstate
commerce. Specifically, Defendants promote their
businesses and events through interstate promotions
11

and campaigns to target persons from different
states throughout the United States. Defendants
principally use the World Wide Web, social media
and other vehicles of interstate commerce to
advertise, market, promote, and entice or lure
membership and attendance at Eyz Wide Shut events.
(Doc. # 38 at ¶ 302).
Defendants point to a case from the Southern District of
Florida, Edmonson v. Velvet Lifestyles, LLC, No. 1:15-cv24442-JAL, Doc. # 77, at 14-17 (S.D. Fla. Sept. 8, 2016), in
which the district court dismissed without prejudice the
Lanham Act claims with allegations of interstate commerce
similarly

focused

on

the

defendant’s

social

media

advertisements. That court held the plaintiff models failed
to sufficiently allege the defendant’s “private members-only,
spouse-swapping sex club substantially affects interstate
commerce.” Id. at 14.
But Defendants fail to mention that, after an amended
complaint

was

filed

with

greater

detail

regarding

the

interstate commerce allegations, the Edmonson court denied
the

next

motion

complaint’s

to

dismiss

“allegations

and

concluded

sufficiently

plead

the

amended

that

the

misrepresented service — Defendants’ private swingers’ club
— affects interstate commerce” because it adequately alleged

12

“Defendants solicit out-of-state tourists to [the club].” Id.
at Doc. # 100, at 15-16 (S.D. Fla. Dec. 2, 2016).
Here, too, Plaintiffs allege that Defendants use the
internet and social media to advertise their events and entice
out-of-state individuals to attend those events or become
members of the club. (Doc. # 38 at ¶¶ 12, 302). Such use of
the internet to draw individuals to club events or to purchase
memberships qualifies as use in interstate commerce. See 907
Whitehead St., Inc. v. Sec’y of U.S. Dep’t of Agric., 701
F.3d 1345, 1351 (11th Cir. 2012)(“[I]t is well-settled that,
when local businesses solicit out-of-state tourists, they
engage in activity affecting interstate commerce.”).
Regarding

the

Harrows’

argument

about

individual

liability for the Lanham Act claims, the Eleventh Circuit has
explained: “‘Natural persons, as well as corporations, may be
liable for trademark infringement under the Lanham Act’ if,
as a business entity’s agent, an individual ‘actively caused
the infringement, as a moving, conscious force.’” ADT LLC v.
Alarm Prot. Tech. Fla., LLC, 646 F. App’x 781, 787–88 (11th
Cir. 2016)(quoting Chanel, Inc. v. Italian Activewear of
Fla.,

Inc.,

931

F.2d

1472,

1477–78

(11th

Cir.

1991)).

“Specifically, a corporate officer who directs, controls,
ratifies, participates in, or is the moving force behind the
13

infringing

activity,

is

personally

liable

for

such

infringement without regard to piercing of the corporate
veil.” Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161,
1184 (11th Cir. 1994).
The Harrows have not made any arguments under this
standard, instead citing only to Florida cases regarding
Florida causes of action. (Doc. # 41 at 3-6). Therefore, the
Harrows have failed to persuade the Court that individual
liability

is

especially

in

inappropriate
light

of

for

the

Plaintiffs’

Lanham

Act

allegations

claims,
that

the

Harrows had authority over “decisions relating to Eyz Wide
Shut’s promotional, advertising, marketing and endorsement
activities” and were the “moving force in the decision to
engage in the infringing acts.” (Doc. # 38 at ¶¶ 46, 49, 51).
The Court will address the Harrows’ individual liability for
the state claims in another section.
2.

False Endorsement

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,
14

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)(“[W]e 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 (quoting Gift of Learning Found, Inc. v. TGC, Inc.,
329 F.3d 792, 797-98 (11th Cir. 2003)). The third and fourth

15

categories are distinctive enough to receive protection, the
second can be, but the first is generally not enough. Id.
Defendants

challenge

only

the

first

element

of

the

Plaintiffs’ false endorsement claims. (Doc. # 41 at 12-13;
Doc. # 42 at 9). The Harrows and the Bottle Club assert the
Plaintiffs’ images are not protectable marks: “Plaintiffs
have not and cannot allege anything about the photographs
that distinguish or identify a specific source of goods” and
“the images and likenesses of the models are not protectable
as a trademark because they do not perform the trademark
function of designation.” (Doc. # 41 at 13; Doc. # 42 at 9).
According to Defendants, Plaintiffs seek to be declared “as
walking, talking trademarks.” (Doc. # 41 at 13). Defendants
rely on ETW Corp. v. Jierh Pub., Inc., 332 F.3d 915 (6th Cir.
2003), for the proposition

that, “as a general rule, a

person’s image or likeness cannot function as a trademark.”
Id. at 922. But, unlike the plaintiff in ETW Corp., Plaintiffs
are not asserting they have trademark rights in every image
of themselves; rather, as a basis for their false endorsement
claims, Plaintiffs point to specific photographs Defendants
used without permission and which allegedly confused viewers
about Plaintiffs’ association with Eyz Wide Shut.

16

Furthermore, in discussing the false endorsement claim,
the ETW Corp. court also wrote: “Courts have recognized false
endorsement claims under § 43(a) of the Lanham Act where a
celebrity’s image or persona is used in association with a
product so as to imply that the celebrity endorses the
product.” ETW Corp., 332 F.3d at 925. “[T]he ‘mark’ at issue
is the plaintiff’s identity.” Id. at 926 (quoting Landham v.
Lewis Galoob Toys, Inc., 227 F.3d 619, 626 (6th Cir. 2000));
see also Parks v. La Face Records, 329 F.3d 437, 447 (6th
Cir. 2003)(“[C]ourts routinely recognize a property right in
celebrity identity akin to that of a trademark holder under
§ 43(a).”); White v. Samsung Elecs. Am., Inc., 971 F.2d 1395,
1400

(9th

endorsement

Cir.
by

1992)(“In
a

cases

celebrity

involving

plaintiff,

confusion

‘mark’

means

over
the

celebrity’s persona.”). And at least one district court has
held that the “Lanham Act itself does not have a requirement
that a plaintiff is a celebrity.” Arnold v. Treadwell, 642 F.
Supp. 2d 723, 735 (E.D. Mich. 2009). Rather, the Lanham Act
“is designed to protect reasonable commercial interests in
marks, including identities.” Id.
Plaintiffs
protectable

argue

marks

their
with

images
the

and

likenesses

requisite

level

are
of

distinctiveness: “Plaintiffs’ images (in this case their
17

actual identities) are, by definition, inherently distinctive
or,

by

virtue

(identities)

to

of

the

build

Plaintiffs
a

brand

using

around

their

images

themselves,

have

acquired a distinctiveness through secondary meaning.” (Doc.
# 44 at 17). Furthermore, Plaintiffs argue their images and
likenesses do serve a designating function because “each
Plaintiff’s persona is inseparable from her brand [such] that
the

use

of

the

same

or

similar

images

and

likeness

by

Defendants constitutes a false representation by Defendants
that their good or services, i.e. swinger activities, come
from the source of Plaintiff’s brand.” (Id.). Plaintiffs all
have utilized their images and likenesses for commercial
purposes, as shown by their modeling careers described in the
Amended Complaint.
The Court finds that Plaintiffs have alleged sufficient
facts to state a plausible claim for relief. Plaintiffs allege
the marks infringed upon were their own images or likenesses
and, to show the degree of protection warranted for those
marks,

they

allege

their

extensive

work

history

in

the

modeling industry and their numbers of followers on social
media. (Doc. # 38 at ¶¶ 69, 80, 91, 102, 113, 124, 135, 146,
157, 168, 179, 191, 202, 213, 224, 235, 246, 257, 268, 279).
Additionally,

Plaintiffs

allege
18

that

many

use

the

same

methods of advertising, social media, as Defendants. (Id. at
¶¶ 72, 83, 94, 105, 116, 127, 138, 149, 160, 171, 183, 194,
205, 216, 227, 238, 249, 260, 271, 282). Plaintiffs allege
that their images and likenesses are inextricably associated
with their personal “brands,” and that the use of their images
by Defendants has led to actual consumer confusion about
Plaintiffs’ association with Eyz Wide Shut. (Id. at ¶¶ 59,
62-63, 301).
Taken as a whole, Plaintiffs have alleged enough to
survive the motion to dismiss stage. See Krupa v. Platinum
Plus, LLC, No. 8:16-cv-3189-T-33MAP, 2017 WL 1050222, at *6
(M.D. Fla. Mar. 20, 2017)(denying motion to dismiss false
endorsement claim where plaintiff models had substantial
modeling careers, social media followings, and used social
media to advertise). Defendants are free to argue at summary
judgment or trial that Plaintiffs have not proved all the
elements of their claims.
B.

State Law Claims

The Harrows argue that the state law claims should be
dismissed for failure to plead a basis for their individual
liability. (Doc. # 41 at 3-6). The alleged acts were committed
in the course and scope of the Harrows’ employment as officers
or directors of the corporate entity Defendants. And the
19

Harrows argue Plaintiffs failed to sufficiently allege why
the Harrows should be personally liable for those acts. The
Court disagrees.
“A corporate officer or employee is not liable for the
torts of the company simply because of the person’s position
with the company.” Vesta Const. & Design, L.L.C. v. Lotspeich
& Assocs., Inc., 974 So.2d 1176, 1180 (Fla. 5th DCA 2008).
But “‘officers or agents of corporations may be individually
liable in tort if they commit or participate in a tort, even
if their acts are within the course and scope of their
employment.’” Id. (quoting White v. Wal-Mart Stores, Inc.,
918 So.2d 357, 358 (Fla. 1st DCA 2005)).
Plaintiffs allege the Harrows “personally participated
in

the

decision

making

of

the

creation

of

the

subject

advertisements that were published on Defendants’ website and
social media pages and actually authorized the acts of false
advertising

and

image

misappropriation

for

commercial

benefit.” (Id. at ¶¶ 45, 48). Therefore, Plaintiffs have
sufficiently

pled

a

basis

for

the

Harrows’

individual

liability for the state law claims. See Burciaga v. Gold Club
Tampa, Inc., No. 8:16-cv-790-T-27JSS, Doc. # 35, at 14 (M.D.
Fla. Dec. 28, 2016)(“Plaintiffs sufficiently allege that
Tomkovich individually participated in conduct supporting the
20

remaining state law claims. Accordingly, these claims against
Tomkovich will not be dismissed.”).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants Susan and Andrew Harrow’s Motion to Dismiss
First Amended Complaint (Doc. # 41) is DENIED.

(2)

Defendant Bottle Club, LLC’s Motion to Dismiss Counts I
and VIII (Doc. # 42) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this

14th day of July, 2017.

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