Geiger v. Abarca Family Inc.

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BRENDA LYNN GEIGER, et al., Plaintiffs, v. ABARCA FAMILY INC., d/b/a LA RUMBA RESTAURANT & NIGHTCLUB, et al., Defendants.

Civil Action No. 3:21cv771 (DJN-EWH)

United States District Court, E.D. Virginia, Richmond Division

July 29, 2022

REPORT & RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT

Elizabeth W. Hanes United States Magistrate Judge

Plaintiffs Brenda Lynn Geiger, Emily Scott, Jennifer Zharinova, Jessica “Jessa” Hinton, Lina Posada, Lucy Pinder, Paola Canas, Sandra Valencia, Tiffany Toth, and Jessica Rockwell (collectively, “Plaintiffs”) bring this action against Defendants Abarca Family, Inc., d/b/a La Rumba Restaurant & Nightclub (the “Club”) and Does 1 through 5 (the “Doe Defendants”) (collectively “Defendants”), alleging that Defendants misappropriated and used Plaintiffs' images without permission in advertising and promotions for the Club.

This matter comes before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) for a Report and Recommendation on the Club's Motion to Dismiss Plaintiffs' Amended Complaint (“Motion to Dismiss”) (ECF No. 18) under Federal Rule of Civil Procedure 12(b)(6). Having considered Plaintiffs' Amended Complaint (ECF No. 13) and the parties' briefs, and for the reasons discussed below the undersigned RECOMMENDS that the Club's Motion to Dismiss be GRANTED in part and DENIED in part.

I. BACKGROUND

When deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court accepts as true the plaintiffs' well-pleaded allegations and views all facts and draws all reasonable inferences in the light most favorable to them. T. G. Slater & Son, Inc. v. Donald P. & Patricia A. Brennan, LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citing Mylan Lab'ys, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). However, the court “‘need not accept the [plaintiff's] legal conclusions drawn from the facts,' nor need it ‘accept as true unwarranted inferences, unreasonable conclusions, or arguments.'” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (quoting Wahi v. Charleston Area Med.. Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009)). Applying these standards, the undersigned construes the facts as follows for the purpose of resolving the Motion to Dismiss.

A. Factual Background

Plaintiffs are a group of “well-known professional model[s],” who earn their “livelihood[s] by modeling and licensing [their] Images to companies, magazines and individuals for the purpose of advertising products and services.” (Am. Compl. ¶ 20). The Amended Complaint details each of Plaintiffs' careers, which range from performing in a music video with a Grammy-nominated rapper; to modeling for companies such as Great Clips, Chevrolet Malibu, and Sprint; to being featured in magazines such as Playboy, Seventeen, and Maxim. (Am. Compl. ¶¶ 27-56.)

As models, Plaintiffs place a high value on their good will and reputation, “which is critical in order to maximize their earning potential, book model contracts, and establish each of their individual brands.” (Am. Compl. ¶ 21.) The fee paid to a professional model for a photoshoot and the use of her image depends on a number of factors, such as the model's “reputation earning capacity, experience, and demand.” (Am. Compl. ¶ 67.) In order to establish and maintain their brands, Plaintiffs are “necessarily selective concerning the companies, and brands, for which they model.” (Am. Compl. ¶ 21.)

The Club operates in Richmond, Virginia, and it is “engaged in the business of selling alcohol and food in an atmosphere were [sic] nude and/or semi-nude women entertain the [Club's] clientele.” (Am. Compl. ¶ 57.) The Doe Defendants are “certain yet-to-be-named individuals and/or entities,” which include “graphic designers, independent contractors, DJs, social media consultants and/or others” who worked in concert with or at the direction of the Club in creating and publishing the advertisements at issue in this lawsuit. (Am. Compl. ¶ 19.)

Defendants own, operate, and control the Club's social media accounts, including Facebook, Twitter, and Instagram accounts. (Am. Compl. ¶ 58.) At various times between January 2016 and October 2019, Defendants, without compensating Plaintiffs and without obtaining their permission, misappropriated images of Plaintiffs and intentionally altered them to make it appear as though Plaintiffs worked at, endorsed, or were otherwise associated with the Club. (Am. Compl. ¶ 22.) Defendants published the images of Plaintiffs on the Club's website and social media accounts, advertising events at the Club with the intent to “attract clientele to the Club, promote the Club, and thereby generate revenue for Defendants.” (Am. Compl. ¶¶ 68-70.) Plaintiffs allege that at “no point were any of the Plaintiffs ever affiliated with the Club, or Defendants.” (Am. Compl. ¶ 75.)

B. Procedural History

On December 13, 2021, Plaintiffs filed their original complaint in this Court. (ECF No. 1.) They subsequently filed an Amended Complaint on March 18, 2022. (ECF No. 13.)

On April 22, 2022, the Club filed the Motion to Dismiss and accompanying Memorandum of Points and Authorities in Support of Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Club's Mem.”) (ECF No. 19), arguing that each of Plaintiffs' claims should be dismissed. On May 6, 2022, Plaintiffs filed a Memorandum of Law in Opposition to Defendants' Motion to Dismiss or Judgment on the Pleadings (“Pl.'s Mem.”) (ECF No. 21). On May 13, 2022, the Club filed a Reply Brief in Support of Defendant's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Club's Reply”) (ECF No. 22).

On June 9, 2022, Judge Novak referred the Club's Motion to Dismiss to the undersigned for Report and Recommendation. (ECF No. 24.) The Motion to Dismiss is fully briefed and is ripe for review.

II. LEGAL STANDARD FOR 12(B)(6) MOTION TO DISMISS

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss, the court will accept a plaintiff's well-pleaded allegations as true and view the facts in a light most favorable to the plaintiff. Mylan Lab'ys, Inc., 7 F.3d at 1134. However, the court “need not accept the legal conclusions drawn from the facts,” nor must it “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000)).

In order to survive review under 12(b)(6), a complaint must contain sufficient factual information to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed.R.Civ.P. 8(a)(2) (“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”).

Mere labels and conclusions declaring that the plaintiff is entitled to relief are insufficient. Twombly, 550 U.S. at 555. A claim is facially plausible when the plaintiff pleads facts sufficient to permit the court to draw a reasonable inference that the defendant is liable for the claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, the court should grant a motion to dismiss where the allegations are purely legal conclusions or do not permit a court to infer more than a possibility of misconduct. Id. at 678.

In addition, when reviewing “whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (citing Sec 'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)); see also Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (noting that on a motion to dismiss, the court considers “documents that are explicitly incorporated into the complaint by reference” and “those attached to the complaint as exhibits”). Consequently, in reviewing the Club's Motion to Dismiss, the undersigned will consider the exhibits-depicting the advertisements at issue-attached to Plaintiffs' Amended Complaint.

III. ANALYSIS

Plaintiffs bring the following four causes of action in their suit against Defendants: (1) violation of Plaintiffs' right of publicity, unauthorized use of likeness under Virginia Code § 8.0140; (2) violation of Virginia's business conspiracy statute under Code § 18.2-499(A); (3) false advertising under § 43 of the Lanham Act; and (4) false association under § 43 of the Lanham Act. The Club moves to dismiss each count, arguing that Plaintiffs have failed to state a claim upon which relief can be granted. The Club also argues that some of Plaintiffs' claims are time-barred. The undersigned addresses each argument in turn.

A. Count I: Unauthorized Use of Likeness (Va. Code § 8.01-40)

In their first cause of action, Plaintiffs allege that Defendants violated Virginia Code § 8.01-40 when Defendants misappropriated Plaintiffs' images and published them on the Club's website or social media accounts in an effort to attract clientele and generate business. (Am. Compl. ¶¶ 83-92.) Plaintiffs further allege that Defendants did not have Plaintiffs' permission or consent to use the images. (Am. Compl. ¶¶ 93-94.)

Pursuant to Virginia Code § 8.01-40(A), a claim may...