Gibson v. Metropolis of CT LLC
| Decision Date | 27 February 2020 |
| Docket Number | 19-cv-00544 (KAD) |
| Court | U.S. District Court — District of Connecticut |
| Parties | CIELO JEAN GIBSON, EMILY SCOTT, JENNIFER ARCHULETA, JENNIFER ZHARINOVA, JESSICA BURCIAGA, TIFFANY TOTH-GRAY, KIM COZZENS, URSULA YVONNE SANCHEZ, A/K/A URSULA MAYES, Plaintiffs, v. METROPOLIS OF CT LLC D/B/A MARDI GRAS 2, HELEN SANTANIELLO, Defendants. |
Plaintiffs Cielo Jean "CJ" Gibson ("Gibson"), Emily Scott ("Scott"), Jennifer Archuleta ("Archuleta"), Jennifer Zharinova ("Zharinova"), Jessica Burciaga ("Burciaga"), Tiffany Toth-Gray ("Toth"), Kim Cozzens ("Cozzens"), and Ursula Yvonne Sanchez a/k/a Ursula Mayes ("Mayes," and, collectively, the "Plaintiffs") filed this suit against Defendants Metropolis of Connecticut LLC d/b/a Mardi Gras 2 and Helen Santaniello (collectively, the "Defendants") on April 11, 2019. Plaintiffs allege that Defendants unlawfully misappropriated, altered, and published images of the Plaintiffs, who are all professional models, in advertisements for Defendants' strip club in East Windsor, Connecticut. Their initial complaint (ECF No. 1) asserted claims under the Lanham Act and the Connecticut Unfair Trade Practices Act ("CUTPA"), as well as various common law tort claims. On August 13, 2019, Defendants moved to dismiss Plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that all of the Plaintiffs' claims are barred by the applicable statutes of limitations. (ECF No. 17.) On September 3, 2019, Plaintiffs concurrently filed a First Amended Complaint (the "FAC," ECF No. 25), in which Plaintiffs reallege the same claims asserted in the original complaint, and an opposition to Defendants' motion to dismiss in which Plaintiffs argue that the FAC cures the original complaint's alleged deficiencies. (ECF No. 24.) Defendants filed a renewed motion to dismiss the FAC pursuant to Fed. R. Civ. P. 12(b)(6) on September 20, 2019 in which they repeat their statute of limitations arguments. (ECF No. 29.) Plaintiffs filed an opposition to the motion on October 18, 2019. (ECF No. 36.) Defendants thereafter filed a reply brief on October 28, 2019. (ECF No. 37.)
For the reasons that follow, Defendants' motion is GRANTED in part and DENIED in part.
On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must accept the complaint's factual allegations as true and must draw inferences in the plaintiff's favor. Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). A motion filed pursuant to "Rule 12(b)(6) must be decided on 'facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and matters of which judicial notice may be taken.'" Lunardini v. Mass. Mut. Life Ins. Co., 696 F. Supp. 2d 149, 155 (D. Conn. 2010) (quoting Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999)) (brackets omitted). The "complaint must 'state a claim to relief that is plausible on its face,'" setting forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d 236, 239 (2d Cir. 2019) (). "Accordingly, 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Iqbal, 556 U.S. at 678) (brackets omitted).
"While a statute of limitations defense is most often pleaded as an affirmative defense and may require a factual inquiry beyond the face of the complaint, a defendant may raise the statute of limitations in a Rule 12(b)(6) motion where the dates in a complaint show that an action is barred by a statute of limitations." Chisholm v. United of Omaha Life Ins. Co., 514 F. Supp. 2d 318, 324 (D. Conn. 2007) (quotation marks, alterations, and citation omitted). However, "[w]here . . . a complaint does not demonstrate facial infirmity with respect to the statute of limitations, a motion to dismiss on this ground must fail." Bartold v. Wells Fargo Bank, N.A., No. 14-CV-00865 (VAB), 2015 WL 7458504, at *4 (D. Conn. Nov. 24, 2015) (quotation marks and citation omitted). "In short, a motion to dismiss may be granted if a complaint's allegations affirmatively establish an action's untimeliness, but it may not be granted simply because a complaint failed to include allegations affirmatively establishing its timeliness." Id. (quoting Slainte Investments Ltd. P'ship v. Jeffrey, 142 F. Supp. 3d 239, 253-54 (D. Conn. 2015)).
Finally, while "once an amended complaint has been filed, it supersedes the original complaint," Tucker v. Am. Int'l Grp., Inc., 936 F. Supp. 2d 1, 21 (D. Conn. 2013), "the Court may still credit admissions in the original complaint and attached exhibits," Fiorillo v. United Techs. Corp., No. 3:13-CV-1287 (VLB), 2015 WL 5797010, at *1 (D. Conn. Sept. 30, 2015) (quotation marks and citation omitted). Here both parties' motions, as well as the FAC itself, refer to Exhibits A-H to Plaintiffs' original complaint (ECF Nos. 1-1, 1-2, 1-3, 1-4, 1-5, 1-6, 1-7, 1-8), which were not attached to the FAC, and the Court will accordingly consider these exhibits in ruling on the motion to dismiss.
The following facts are taken from the FAC and exhibits to the original complaint and are accepted as true for purposes of the motion to dismiss. See Iqbal, 556 U.S. at 678.
Plaintiffs are all well-known professional models who reside throughout the United States, except for Scott, who resides in Australia. (FAC ¶¶ 10-17.) Defendant Metropolis of Connecticut LLC ("Metropolis") is a Connecticut corporation that operates a strip club called "Mardi Gras 2" in East Windsor, CT. (Id. ¶¶ 6, 18.) Defendant Helen Santaniello ("Santaniello") resides in Massachusetts "and at all relevant times was the owner, principal and/or chief executive officer of Metropolis." (Id. ¶ 7.) In such capacity Santaniello oversees all of the advertising for Mardi Gras 2 ("Mardi Gras," or the "Club"). (Id. ¶ 19.)
Plaintiffs earn a living by licensing their images for advertising purposes and are necessarily selective in choosing the products and companies for which they model in order to establish and maintain the integrity and viability of their individual brands. (Id. ¶¶ 20-23.) Each of the Plaintiffs has been featured in some combination of magazine spreads and/or covers, television spots, music videos, and other entertainment or advertising campaigns. (Id. ¶¶ 35, 38, 41, 44, 47, 50, 53, 56.) In all instances in which Plaintiffs' images are used for commercial marketing, Plaintiffs negotiate and grant permission for such use pursuant to mutually agreed-upon terms and conditions and consideration. (Id. ¶ 24.)
Defendants misappropriated Plaintiffs' images and intentionally altered and published them to make it appear as though Plaintiffs worked at Mardi Gras or otherwise sponsored or promoted the Club in order to attract clientele, even though no Plaintiff has ever worked at or been affiliated with Mardi Gras and Plaintiffs did not consent to such use of their images or receive compensation from the Defendants. Specifically, Defendants unlawfully used Plaintiffs' images in promotions posted on the Club's Facebook or Instagram pages on the following dates:
Plaintiffs further allege that "Defendants' unauthorized use . . . was continuous and ongoing insofar as the infringing and false advertisements remained up for months and/or years after their original publication," (e.g., FAC ¶ 29) and that they have been substantially injured in their careers as a result. (Id. ¶¶ 79-80.)
Plaintiffs bring claims of false advertising and false association under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), (a)(1)(A), respectively (Counts One and Two); common law invasion of privacy—appropriation of likeness and false light (Counts Three and Four, respectively); CUTPA violations, Conn. Gen. Stat. § 42-110b (Count Five); defamation (Count Six); negligence and respondeat superior (Count Seven); conversion (Count Eight); unjust enrichment (Count Nine); and ...
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