FC Online Mktg., Inc. v. Costa
| Decision Date | 18 November 2014 |
| Docket Number | Case No. 8:13-cv-01713-T-27TBM |
| Parties | FC ONLINE MARKETING, INC., Plaintiff, v. TARA COSTA et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
BEFORE THE COURT are Plaintiff's Motion for Partial Summary Judgment and in the Alternative, Motion in Limine (Dkt. 57), Defendants' Motion for Final Summary Judgment (Dkt. 59), and Plaintiff's Motion for Summary Judgment on Defendants' Counterclaims (Dkt. 61). Upon consideration, Plaintiff's Motion for Partial Summary Judgment (Dkt. 57) is DENIED, Defendants' Motion for Final Summary Judgment (Dkt. 59) is GRANTED as to Count III and otherwise DENIED, and Plaintiff's Motion for Summary Judgment on Defendants' Counterclaims (Dkt. 61) is DENIED.
Defendant Tara Costa1 became well known for her appearance on the 2009 edition of The Biggest Loser, a reality television show featuring a competition among contestants to lose the most weight. On January 1, 2011, Costa purportedly entered into an agreement with the Inspire ChangeFoundation, a member entity of Defendant The Champions Fund, Inc. ("TCF"),2 granting Inspire Change the authority to license her name and image for commercial purposes. All parties agree that no copy of the executed contract has been found or produced. (See Dkt. 59-2 ¶ 2). Nevertheless, Costa avers that she and Inspire Change executed the blank "License Agreement" submitted in support of summary judgment. (See Dkt. 59-1). Subsequently, in June or July of 2013,3 Costa and Liz Willyoung (on behalf of TCF) executed the "Confirmation of License Agreement," which memorialized Costa's original execution of the License Agreement and ratified its terms. (Dkt. 59-3; Dkt. 57-3 at 147:7-12).
On March 1, 2011, Plaintiff FC Online Marketing ("FCOM") and TCF executed what the parties refer to as the "Foundation Contract." (Dkt. 59-4). The Foundation Contract granted to FCOM a limited right to use Costa's name, image, and likeness on television, radio, Internet, and social media platforms, with written permission from Costa. (Dkt. 59-4 at 2). The term of the Foundation Contract was 12 months, with an automatic renewal for an additional 12 months unless cancelled by either party. (Dkt. 59-4 at 3). When the Foundation Contract automatically renewed, the fees owed to Costa increased by 20%. (Dkt. 59-4 at 3).4
The Foundation Contract imposed several contractual obligations on Costa. She was required(1) to participate in two full-day promotional shoots; (2) participate in two conference calls per month with "clients" and one conference call per month with "store owners"5; (3) be active on social media by delivering four monthly social media messages through Facebook or Twitter, as well as two additional posts on FCOM's Facebook page6; (4) make six in-person appearances; and (5) participate in phone interviews set up by FCOM on mutually agreed upon dates.7 The Foundation Contract also contains a "Talent Responsibility" provision, under which Costa agreed "to maintainher current level of fitness and conditioning during the term of this Agreement." (Dkt. 59-4 at 3).8
Also on March 1, 2011, FCOM and Costa entered into a contract that the parties refer to as the "Costa Contract." (Dkt. 59-5). In the Costa Contract, FCOM guaranteed that Costa would make a minimum of 15 in-store promotional appearances, for which Costa would be paid $2,500.00 per appearance.9 Like the Foundation Contract, the Costa Contract was for a term of 12 months, with an automatic renewal for another 12 months, unless cancelled by either party. (Dkt. 59-5 at 2). If renewed, the fees in the Costa Contract were to increase by 10%. The Costa Contract also included a "talent responsibility" provision identical to the one in the Foundation Contract, requiring Costa to "maintain her current level of fitness and conditioning during the term of this Agreement." (Dkt. 59-5 at 3).
After the parties entered into the two contracts, Costa appeared for a photo shoot for FCOM.(Dkt. 62-6 ¶ 10). FCOM hired Fleur-de-lees Photography to take the pictures, which the parties refer to generically as "the Photos." (See Dkt. 62-11 at 4-6). The "Model Release" provision of that contract specified that "FC Online Marketing, Inc. owns all right, title and interest in the photos to be taken as part of this shoot." (Dkt. 62-11 at 4).10 The pictures taken at this photo shoot were posted to FCOM's websites, and there is no dispute that they remained on the websites after the two-year contract terms expired. (See Dkt. 62 at 6).
On April 16, 2013, counsel for Costa sent FCOM a demand letter alleging that FCOM was using Costa's name and likeness without her permission in breach of the Foundation Contract and that FCOM had failed to compensate Costa for the personal appearances guaranteed in the Costa Contract. (Dkt. 59-6).
FCOM filed this lawsuit soon after, alleging subject matter jurisdiction based on federal question jurisdiction. The Amended Complaint (Dkt. 24) asserted three claims against Costa and The Champions Fund. Count I, which sought a declaratory judgment and was the basis of federal question jurisdiction, alleged that FCOM was the exclusive owner of the copyright of the photographs of Costa that appeared on FCOM's websites and that FCOM was free to use the photographs "as it deems fit." Count I was dismissed for lack of an actual case or controversy. (Dkt. 75). After the dismissal of Count I, the parties were ordered to show cause why the case should not be dismissed for lack of subject matter jurisdiction. (Id.) In response, the parties sought to dismiss Costa as a party and assert subject matter jurisdiction based on diversity of citizenship. (Dkts. 79, 80). Their requests were granted, and this case now proceeds on diversity jurisdiction. (Dkts. 81, 82).
The parties filed a joint notice of the remaining claims and counterclaims after the dismissalof Costa. (Dkt. 83). Plaintiff has two remaining claims. Count II alleges that TCF breached the Foundation Contract as a result of Costa "1) failing to maintain her current level of fitness; 2) failing to complete her required promotional appearances; 3) failing to complete her required number of social media posts; and 4) failing to complete her required number of conference calls." (Dkt. 24 ¶ 36). Count III is a claim for fraudulent misrepresentation. In Count III, FCOM alleges that TCF lacked authority to license Costa's likeness rights pursuant to Fla. Stat. § 540.08, and TCF "could not license to FCOM what it did not in fact own." (Id. ¶ 40).
Defendants filed a Counterclaim (Dkt. 11) which originally had three claims, one of which survives the dismissal of Costa. Count III, the surviving claim, alleges FCOM breached the Foundation Contract by failing to pay TCF the fees due for the renewal term of the Foundation Contract. (Dkt. 11 ¶¶ 43-44, at 19).
FCOM moves for summary judgment on its claim of fraudulent misrepresentation (Count III of the Amended Complaint), and on Defendant's Counterclaim. Defendant moves for summary judgment on all counts of the Amended Complaint and the Counterclaim.
Summary judgment is appropriate where "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). "A genuine factual dispute exists only if a reasonable fact-finder4 could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.'" Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
The moving party bears the initial burden of showing the court, by reference to materials onfile, that there are no genuine disputes of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party fails to demonstrate the absence of a genuine dispute, the motion should be denied. Kernel Records, 694 F.3d at 1300 (citing Adickes v. S.H Kress & Co., 398 U.S. 144, 160 (1970); Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991)). Once the movant adequately supports its motion, the burden shifts to the nonmoving party to show that specific facts exist that raise a genuine issue for trial. Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010). The nonmoving party must "go beyond the pleadings," and designate specific facts showing that there is a genuine dispute. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324). A mere scintilla of evidence in the form of conclusory allegations, legal conclusions, or evidence that is merely colorable or not significantly probative of a disputed fact cannot satisfy a party's burden. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991); Kernel Records, 694 F.3d at 1301.
The evidence presented must be viewed in the light most favorable to the nonmoving party. Ross v. Jefferson Cnty. Dep't of Health, 701 F.3d 655, 658 (11th Cir. 2012). If there is a conflict between the parties' allegations or evidence, the nonmoving party's evidence is presumed to be true. Shotz v. City of Plantation, Fla., 3AA F.3d 1161, 1164 (11th Cir. 2003). "Although all justifiable inferences are to be drawn in favor of the nonmoving party," Baldwin Cnty. v. Purcell, 971 F.2d 1558, 1563-64 (11th Cir. 1992), "inferences based upon speculation are not reasonable." Marshall v. City of Cape Coral, 797 F.2d 1555, 1559 (11th Cir. 1986). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine dispute over a material fact, the court should not grant summary judgment. Samples ex rel. Samples...
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