Bullard et al v. Day et al
Filing
95
Memorandum Opinion and Order granting in part denying in part 70 Motion for Partial Summary Judgment filed by ARB 1521, LLC, Alec Day, Home Jewelry Business, LLC. (Ordered by Judge John McBryde on 11/25/2014) (mdf)
IN THE UNITED STATES DISTRIC COUR
NORTHERN DISTRICT OF TE S
FORT WORTH DIVISION
PATRICIA BULLARD, ET AL.,
L--_--r----~i
CLERK, U.S. DISTRICT COURT
§
'By_---::------
§
Plaintiffs,
rtloV.215. \
Deputy
§
§
VS.
§
NO. 4:14-CV-604-A
§
ALEC DAY, ET AL.,
§
§
Defendants.
§
MEMORANDUM OPINION
and
ORDER
Came on for consideration in the above-captioned action the
motion for partial summary judgment filed by defendants,! Alec Day
("Day"), Home Jewelry Business, LLC ("Home Jewelry"), aJ::1.d ARB
1521, LLC ("ARB").
Plaintiffs, Patricia Bullard ("Bullard") and
Wubbers, LLC ("Wubbers"), filed a response to defendants' motion.
Having now considered all of the parties' filings, the entire
summary jUdgment record, and the applicable legal authoriities,
the court concludes that the motion for partial summary ijudgment
should be granted in part and denied in part.
1.
undisputed Facts Pertinent to the Motion
Bullard is a well-known maker of wire jewelry.
She conducts
tutorials on the process and has even created her own brand of
pliers, which she sells through her company Wubbers.
Day is the
managing member of Home Jewelry and ARB 1521.
The parties have
entered into two agreements at issue in the above-captiqned
action:
(1) the Content and Model Release ("CMR"), and (2) the
Asset Purchase Agreement ("APA").
Through the CMR, Bullard
agreed to star in a set of instructional DVDs titled "Metal
Working Beginners Series."
It is undisputed that this agreement
pertains only to the first set of DVDs filmed, but that ithe
parties intended the second and third sets to be governdd by a
similar agreement.
Through the Asset Purchase Agreement, Wubbers
agreed to sell certain business assets to Home Jewelry.
Plaintiffs initiated this action by filing their
complaint July 31, 2014, which asserted causes of action for
breach of contract, misappropriation of name and likeness, false
advertising and false endorsement in violation of the Lanham Act,
15 U.S.C.
§§
1051, et. seq., and unjust enrichment.
The claims
at issue in this motion involve defendants marking of the second
and third sets of DVDs.
II.
The Motion for Partial Summary Judgment and Plaintiffs' Response
Defendants move for partial summary judgment as to
plaintiffs' claims of misappropriation of name and likeness and
false advertisement under
§
43(a) of the Lanham Act. They argue
that plaintiffs consented to defendants' use of Bullard'!s name
2
and likeness, so there was no misappropriation.
Defendants
further argue that plaintiffs' false advertising claim under the
Lanham Act fails because they have not proven four of
required elements.
Defendants' motion also seek
t~e
five
attorn~ys'
fees.
Plaintiffs respond that Bullard's consent does not cover the
allegedly
false statements made by defendants.
with regards to
the Lanham Act claims, plaintiffs argue that they have fully
proved all required elements.
Lastly, plaintiffs argue ithat
defendants' evidence as to the amount of attorneys' fees is
excessive an inflated, and further, that defendants provided no
arguments as to their right to such fees.
III.
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of civil Procedure
~rovides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to jUdgment as a matter of law.
Fed. R. Civ.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
3
nonmoving party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324; see also Fed. R. Civ. P. 56(c)
("A party
asserting that a fact . . . is genuinely disputed must support
citing to particular parts of materials in
the assertion by
the record .
. ") .
!
"Unsubstantiated assertions of an actual
dispute will not suffice."
(5th Cir. 1992).
Thomas v. Price, 975 F.2d 231, 235
If the evidence identified could not lead a
rational trier of fact to find in favor of the nonmoving party as
to each essential element of the nonmoving party's case, there is
no genuine dispute for trial and summary judgment is appropriate.
Matsushita Elec. Indus. Co. v. zenith Radio Corp., 475 U.S. 574,
587, 597 (1986).
In Mississippi Prot. & Advocacy Sys. V. Cotten,
the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find ~or
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary jUdgment is
4
the same as the standard for rendering jUdgment as a matter of
law. l
Celotex Corp., 477 U.S. at 323.
If the record taken as a
whole could not lead a rational trier of fact to find for the non
moving party, there is no genuine issue for trial.
Matsushita,
475 U.S. at 597; see also Mississippi Prot. & Advocacy Sys., 929
F.2d at 1058.
IV.
Analysis
A.
Evidentiary Objections
Plaintiffs have objected to the affidavit of Alec Pay,
included as Exhibit A in defendants' appendix to their motion for
summary jUdgment, on the grounds that the statements therein are
primarily statements of hearsay and opinion.
Plaintiffs allege
that so much of the affidavit must be struck that it will retain
no meaning, and therefore it should be struck in its entirety.
In order for a court to consider as evidence an affidavit or
declaration, it "must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated."
Fed. R. civ. P. 56 (c) (4) .
lIn Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)(en banc), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
5
Plaintiffs object to paragraph 7 as hearsay, and paragraphs
37, 41-43, and 47-49 as not setting out admissible
fact~.
Paragraph 7 is an allegation by Day that Bullard would not
assist in creating the instructional DVDs unless defendants
purchased her retail sales.
Rule 801 of the Federal Rules of
Evidence excludes from the definition of hearsay "an opposing
party's statement
ll
opposing party and:
where the "statement is offered against an
(A) was made by the party in an individual or
representative capacity
Fed. R. Ev. 801(d) (2) (A).
II
Therefore this statement is, by definition, not hearsay, and
plaintiffs' objection is overruled.
Paragraph 37 alleges that Day and Home Jewelry
wer~
unaware
of plaintiffs' complaints about the marketing campaign, land that
plaintiffs never approached defendants to complain about such.
These are statements of fact which Day has personal knowledge,
not opinion as plaintiffs allege.
Therefore, plaintiffs'
objection is overruled.
Paragraphs 41 and 42 again allege that Bullard never
contacted Day, and that Bullard instead litigated the issue.
Again, these are statements of fact, not of opinion.
Therefore
plaintiffs' objection is overruled.
Paragraph 43 states that none of the defendants "misused
Bullard's name or likeness.
1I
Mot., App. at 6,
6
~
43.
T~e
paragraph goes on to state that Bullard was involved in the
advertisement of the DVDs because she was the talent.
The first
statement is not a statement of fact but rather is a legal
conclusion.
Therefore plaintiffs' objection is sustained as to
that statement.
Paragraph 47 alleges that all of the statements about
Bullard were compliments.
This is an expression of opinion, not
fact, and therefore plaintiffs' objection as to that paragraph is
sustained.
Paragraph 48 states that all of the statements on the
landing page of defendants' website were from a pseudonYm of Day,
not Bullard.
That is a statement of fact.
Therefore plaintiffs'
objection is overruled.
Paragraph 49 states that while some of the statements on the
landing page were "exaggerations," the statement: "open the box
the DVD and accompanying supply kit come in and complete all the
pieces in less time than it would take you to go to a movie" was
"not meant as a statement that a reasonably [sic] buyer would
rely on, but simply a statement as length of time associated with
watching the DVDs."
Mot., App. at 7,
~
49. Regardless of this
statement's relevance to the inquiry, it is a statement!of fact
as to what was meant when the sentence was written.
plaintiffs' objection to this paragraph is overruled.
7
Therefore,
Because plaintiffs' objections were only sustained as to one
and one-half paragraphs of the 52-paragraph declaration, the
declaration remains usable, and thus it is not be
struc~
in its
entirety.
B.
Misappropriation of Name and Likeness
Plaintiffs' misappropriation claim is based on defendants'
use of Bullard's "name and likeness in certain marketing emails
which are worded and structured to falsely represent that she is
advertising and endorsing Defendants' goods and that she is
making guarantees about the goods being offered on Defendants'
website." Compl. at 1.
Plaintiffs point to a version of the
landing page of defendants' website, which allegedly gives the
impression that Bullard is making a guarantee as to the DVDs, as
well as an email which had the subject line "New Offer oy Patti
Bullard."
In turn, defendants argue that Bullard consented to
defendants' using her name and likeness, which they argue is a
defense to a misappropriation claim.
Defendants have failed to meet their burden of showing that
-
there is no genuine issue of material fact and that they are
entitled to jUdgment as a matter of law as to plaintiffs'
misrepresentation claim.
Therefore, defendants' motion for
partial summary judgment as to plaintiffs' claim for
misrepresentation should be denied.
8
c.
False Advertising Under the Lanham Act
Defendants are challenging plaintiffs' claim for false
advertising under section 43(a) of the Lanham Act.
To ijring such
a claim, plaintiffs must prove:
(1)
A false or misleading statement of fact about.a
product;
(2)
Such statement either deceived, or had the capacity to
deceive a substantial segment of potential consumers;
(3)
The deception is material, in that it is likely to
influence the consumer's purchasing decision;
(4)
The product is in interstate commerce; and
(5)
The plaintiff has been or is likely to be inj~red as a
result of the statement at issue.
pizza Hut, Inc. v. Papa John's Int'l, Inc., 227 F.3d
(5th Cir. 2000).
48~,
495
The statement relied on must be a " [s)'pecific
and measurable claim, capable of being proved false or of being
reasonably interpreted as a statement of objective fact."
496.
Defendants stipulated to element four, but
Id. at
assert~d
that
plaintiffs have failed to meet their burden of proving the rest
of the elements.
Plaintiffs pointed to eight
statement~
they
contend are false or misleading statements under the Lanham Act:
(1) The landing page stated that defendants begged and pleaded
with Bullard for her expertise,
(2)
"the statement on the
original version of the Landing Page that stated Dr. Bullard was
in a partnership with Mr. Day or his company," Mot. at 6,
9
(3)
"content that implied Dr. Bullard was contending consumers could
become expert jewelry makers after viewing the DVDs," Id.,
(4)
!
the statement that "the best jewelry artist [sic] only
~se
a
handful of combination techniques to make hundreds of different
designs," Id.,
(5) the impression that Bullard was making the
guarantee on the landing page,
(6) the statement on the landing
page regarding secret methods,
(7) the email with the
s~bject
iine "New Offer by Patti Bullard," PIs.' Mot. Expedited Disc.,
App. at 51, and (8) an email with the sUbject "Your Order is
Pending (ACTION REQUIRED)," Mot. at 7.
Defendants contend that
all of these statements are mere puffery and therefore, not
actionable under the Lanham Act.
The motion for summary jUdgment should be granted
statements (I),
(2), and (8).
~s
to
Statement (1) is mere puffery.
Puffery is "advertising that is not deceptive for no one would
rely on its exaggerated claims."
496.
pizza Hut, Inc., 227 F.3d at
The statement that defendants begged and pleaded with
Bullard for her secrets is the type of puffery that is not
actionable under
§
43(a) of the Lanham Act.
Plaintiffs have provided no evidence as to statement (2), so
summary jUdgment should be granted insofar as plaintiffs have
relied on that statement.
Plaintiffs state that the landing page
originally alleged that Bullard was in a partnership with
10
defendants.
~laintiffs'
However, the copy of the landing page attached to
second amended complaint in exhibit C
as making such an allegation.
without plaintiffs
canno~
be read
point~ng
to a
specific statement, a claim under the Lanham Act may not be
maintained.
Lastly, summary jUdgment should be granted as to statement
(8) ,the "Your Order is Pending" email.
the record.
Such email is n
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