MEMORANDUM OPINION AND ORDER
This civil action was originally filed in the United States District Court for the Western District of Texas, San Antonio Division, by the plaintiff, Bill Fitzgibbons, LLC, against the defendants, REV Birmingham, Inc. ("REV"), Mayer Electric Supply Company, Inc. ("Mayer"), and Nancy Collat Goedecke. (Doc. 1). Against Goedecke and Mayer, the complaint alleges tortious interference with a business relationship (Count One), federal unfair competition (Count Two), and unjust enrichment (Count Three). Against REV, the complaint alleges federal unfair competition (Count Two), and unjust enrichment (Count Three). Against all three defendants, the complaint alleges a civil conspiracy "to commit a substantive tort against FitzGibbons." (Doc. 1 at 15) (Count Four). All claims arise out of the parties' involvement with the creation of "light sculptures" to be installed in several railroad underpasses indowntown Birmingham.
The case was transferred to this court pursuant to 28 U.S.C. § 1404(a). It now comes before the court on a motion to dismiss filed by Mayer and Goedecke (doc. 22), and a motion to dismiss filed by REV (doc. 33). Both motions argue that the complaint should be dismissed, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. The plaintiff has filed two opposition briefs in response to the motions and, in both, moves the court to allow it to amend the complaint should the court deem the complaint to be insufficient. (Doc. 36 at 11; doc. 40 at 10). In the reply brief it filed to its motion to dismiss, REV has moved the court to strike "Exhibit A" to the plaintiff's brief in opposition to its motion to dismiss. (Doc. 42 at 2, 6-7).
For the reasons stated herein, REV's motion to strike will be GRANTED, the motions to dismiss will be DENIED without prejudice, and the plaintiff's motion to amend will be GRANTED.
"[A] court should only grant a motion to dismiss [under Rule 12(b)(6)] where the defendant demonstrates that the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief." Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). "Moreover, when ruling on a motion todismiss, a court must view the complaint in the light most favorable to the plaintiff and accept all of the plaintiff's well-pleaded facts [and reasonable inferences drawn from those facts] as true." Id. (emphasis added). A court looks to the facts alleged in the plaintiff's complaint, and not its merely conclusory statements, when ruling on a motion to dismiss. Thus, to survive a motion to dismiss for failure to state a claim, "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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007) (quotations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965. Mere conclusory statements in support of a threadbare recital of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
II. ALLEGATIONS IN THE COMPLAINT The complaint alleges, in pertinent part:
10. FitzGibbons is an internationally known light artist that creates unique light sculptures that are site-specific for physical structures. His artwork is normally large scale lighting of a public structure to enhance the entire area to make the area a very desirable place for the public.
11. In addition to being internationally known as a light artist creating light sculptures, FitzGibbons has completed numerous public artprojects throughout the United States, and in foreign countries.
12. Some examples of the awards received by FitzGibbons for his work as a light artist creating light sculptures includes the following:
(a) Being named "Texas State Artist" by the Texas Legislature in 2012;
(b) Being a visiting Fulbright Scholar in Hungary;
(c) Recognition of his Day Star Arch in Art in Americas - 2000-2001 Public Art Review;
(d) Forthcoming spring cover story in National Art Magazine Art Voices;
(e) Cover story in LEDs Magazine for the LightRails project; and
(f) Will be featured in the next issue of Du Coté Chez Vous, a design magazine published in Paris, France.
13. Because of FitzGibbons' international reputation as a light artist providing light sculptures, in October 2012, Atticus Rominger, Chief Public and Investor Relations Officer of REV Birmingham, contacted FitzGibbons in San Antonio, Texas about providing a light sculpture for one of the underpasses in Birmingham. In addition to providing a Google map link of the particular underpass, Rominger stated the following:
I think there is great potential for future projects if we can get this one off the ground.
14. After reviewing the proposed underpass to receive the light sculpture, FitzGibbons responded, indicating that such a light sculpture "would be a dynamic transformative public art installation that would receive national attention."
15. After a conference call with FitzGibbons in San Antonio, Texas that included employees of the City of Birmingham and REV Birmingham, a site inspection of the underpass was arranged. Immediately prior to the site inspection, Rominger sent out an email dated January 28, 2013 indicating that "Light Artist" FitzGibbons will be coming from San Antonio, Texas to Birmingham, Alabama for a tour of potential sites for light installations. A notice was also sent to employees of the City of Birmingham.
16. On January 31, 2013, FitzGibbons flew from San Antonio to Birmingham and met with the following people, plus others:
(a) David Fleming, Chief Executive Officer of REV Birmingham;
(b) Kate Nielson, President of the Community Foundation of Greater Birmingham; and
(c) Bonner Wagnon, Public Director of the Cultural-Alliance.
17. Four underpasses were inspected for what was later named the "LightRails" project. FitzGibbons was told by Rominger if the project on the first underpass was successful, REV Birmingham would like to do the other three underpasses, which had similar structural elements to be equipped with similar LightRails.
18. On February 8, 2013, FitzGibbons sent a proposal for a light sculpture on the 18th Street underpass. On February 11, 2013, Rominger requested FitzGibbons to think about proposals for all four underpasses.
19. The proposal submitted to REV Birmingham by FitzGibbons on February 8, 2013 stated:
It is understood that this artwork will come on line as pilot project with the goal of creating similar artworks at the 14th, 19th and 20th Street underpasses.
20. After some discussion of a timeline, REV Birmingham andFitzGibbons entered into a contract.
21. On March 15, 2013, the City of Birmingham was contacted by REV Birmingham to get the City to provide dedicated electrical circuits to power to the soon-to-be installed light sculpture at the 18th Street underpass. The City of Birmingham subsequently provided the dedicated circuits, which were paid for by the taxpayers of Birmingham.
22. The timeline proposed for the light sculpture at the 18th Street underpass was very tight. FitzGibbons put aside other paying work to be able to complete the LightRails project on the schedule requested by REV Birmingham.
23. During the completion of the project at the 18th Street underpass, various names were suggested for the light sculpture until settling on the term "LightRails".
24. While FitzGibbons was completing the light sculpture at the 18th Street underpass, FitzGibbons was asked by Rominger of REV Birmingham to donate his lights and his services for a one-night fundraiser event in Birmingham for the Red Cross called Paint the Town Red. FitzGibbons complied with the request.
25. REV Birmingham wanted the LightRails project completed in four months by June 27, 2013, which was a very difficult schedule to meet. Typically, such a project would take 12 to 15 months to complete.
26. In May 2013, Rominger suggested to FitzGibbons that the lighting fixtures be purchased from Nancy Goedecke and/or her company Mayer Electric. Rominger stated Goedecke owned Mayer Electric, a large electrical supply company in the State of Alabama.
27. FitzGibbons informed Rominger/REV Birmingham that he purchased the ColorKinetics fixtures he used directly from the manufacturer. Because the ColorKinetics fixtures were sold directly by the manufacturer to FitzGibbons, the price FitzGibbons paid for the fixtures was the same price that would have been paid by Mayer Electric. There was no markup in the price of the ColorKinetics lightfixtures provided by FitzGibbons.
28. At the time that Rominger suggested the light fixtures be purchased from Mayer Electric, Goedecke was (a) a member of the Board of Directors of REV Birmingham and (b) Chairman and CEO of Mayer Electric.
29. Rominger ignored Goedecke's conflict of interest . . . when attempting to get FitzGibbons to buy the light fixtures from Goedecke's company, Mayer Electric.
30. Despite the statements by FitzGibbons that he purchased directly from the factory, Chris Hatcher with REV Birmingham sent an email to Goedecke indicating:
Someone with S and W [Electric] will be call [sic] Mayer within the next few days to discuss the supply list with you.
31. The grand opening of the light sculpture created by FitzGibbons at the 18th Street underpass occurred on July 27, 2013. The light sculpture project was branded and promoted as "LightRails[.]" Thousands of invitations were sent by REV Birmingham, inviting people to the Grand Opening of "LightRails" on July
...
