In Dime We Tr., RLT v. Armadillo Distribution Enters.
| Decision Date | 23 September 2022 |
| Docket Number | 8:21-cv-1967-SDM-AAS |
| Parties | IN DIME WE TRUST, RLT, a Texas Revocable Living Trust, by and through RITA HANEY, Trustee, Plaintiff, v. ARMADILLO DISTRIBUTION ENTERPRISES, INC., Florida corporation, D/B/A DEAN GUITARS; CONCORDIA INVESTMENT PARTNERS, LLC, a Florida limited liability company, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
REPORT AND RECOMMENDATION
Defendants Armadillo Distribution Enterprises, Inc. d/b/a Dean Guitars (Dean Guitars) and Concordia Investment Partners, LLC (Concordia) (collectively, the defendants) move to dismiss Plaintiff In Dime We Trust, RLT's (the Trust) amended complaint. (Doc. 33). The Trust opposes the motion. (Doc 50). Upon consideration of the parties' arguments in the papers and at oral argument (Doc. 128), this report RECOMMENDS the defendants' motion be GRANTED. The Trust should be permitted an opportunity to cure the amended complaint's overall pleading deficiencies and attempt to re-plead all claims except for its claims for right of publicity (count VI) and unfair competition (count VII).
The Trust asserts ten claims against Dean Guitars and four claims against Concordia. (Doc. 29). The Trust is the alleged assignee and owner of all properties and intellectual properties from the estate of Darrell “Dimebag” Abbott (Dime)-former lead guitarist of the band Pantera. (Id.). Dean Guitars manufactures, distributes, and sells musical instruments and other products. (Doc. 29, ¶ 2). Dean Guitars and Concordia have common ownership and are affiliated companies. (Doc. 29, ¶ 4).
In November 2004, Dean Guitars and Dime entered into an endorsement agreement (the 2004 Agreement) under which Dime would endorse a signature line of guitars with his name, image, and likeness and Dean Guitars would manufacture, distribute, advertise, promote, and sell those guitars. (Doc. 29, ¶ 14). The 2004 Agreement prohibited assignments, transfers, and sublicenses without the “express prior written consent” of the other party, except that Dime may assign the “financial benefits” of the contract. (Doc. 33, Ex A; Doc. 53, Ex. A, ¶ 27).[2] A month later, Dime was tragically killed while performing. (Doc. 29, ¶ 18).
Dime was survived by his brother Vincent Abbott and his father Jerry Abbott. (Doc. 29, ¶ 20). Vincent Abbott administered Dime's estate. (Id.). Almost ten years after the 2004 Agreement, in June 2014, Dean Guitars and Dime's estate (through Vincent Abbott) signed a reinstated endorsement agreement (the 2014 Agreement) (together with the 2004 Agreement, the Agreements).[3] (Doc. 29, ¶ 21; Doc. 33, Ex. B; Doc. 53, Ex. B, ¶ 27). Like the 2004 Agreement, the 2014 Agreement authorized Dean Guitars to use Dime's name, image, and likeness in the manufacturing and sales of guitars. (Id.). The 2014 Agreement also prohibited assignments, transfers, and sublicenses without the “express prior written consent” of the other party, except that Dime's estate had the right to assign the “financial benefits” of the contract. (Doc. 33, Ex. B; Doc. 53, Ex. B, ¶ 27). Vincent Abbott died in June 2018 and transferred his interest in Dime's estate, including all intellectual property rights, to Rita Haney by will. (Doc. 29, ¶ 26).
In May 2020, Jerry Abbott and Ms. Haney transferred all assets of Dime's estate to the Trust, with Ms. Haney as the trustee. (Doc. 29, ¶ 26). The transfer included:
On August 16, 2021, the Trust sued the defendants. (Doc. 1). The Trust's amended complaint asserts: Breach of Written Agreement against Dean Guitars (count I); Copyright Infringement against Dean Guitars (count II); Unfair Competition, False Endorsement, False Association, and False Designation of Origin under Section 43(a)(1)(A) of the Lanham Act against the defendants (count III); False Advertising under Section 43(a)(1)(B) of the Lanham Act against Dean Guitars (count IV); Violation of Florida's Unfair and Deceptive Trade Practices Act, § 501.201, et seq. (FDUTPA) against the defendants (count V); Violation of the Right of Publicity, FLA. STAT. § 540.08, against Dean Guitars (count VI); Common Law Unfair Competition against the defendants (count VII); Fraud against the defendants (count VIII); Quantum Meruit against Dean Guitars (count IX); and Accounting against Dean Guitars (count X). (Doc. 29).
The defendants request dismissal of the Trust's amended complaint on four grounds: (1) the Trust lacks standing to raise contract and trademark related claims (counts I, III, IV, VII, VIII, IX, and X) under Federal Rule of Civil Procedure 12(b)(1); (2) the Trust is not the real party in interest; (3) the amended complaint is an impermissible shotgun pleading; and (4) the amended complaint fails to state a plausible claim under Fed.R.Civ.P. 12(b)(6). (Doc. 33).
In federal court the plaintiff must establish Article III standing. Lujan v. Defs. Of Wildlife, 504 U.S. 555, 561 (1992). Because lack of standing deprives the court of its constitutional power to adjudicate the parties' dispute, a district court must confirm a party's standing before proceeding to consider the merits of the claims. Gardner v. Mutz, 962 F.3d 1329, 1336 (11th Cir. 2020) (citations omitted).
Establishing standing requires three elements: an injury-in-fact (an invasion of an interest that is both concrete and particularized, and actual or imminent), a causal connection between the plaintiff's injury and the challenged action of the defendant, and a likelihood (not mere speculation) that a favorable judgment will redress the plaintiff's injury. Gardner, supra, at 1338 (quoting Lujan, 504 U.S. at 560-61). If a plaintiff lacks standing, the dispute is not within the subject matter jurisdiction of the court. Doe v. Pryor, 344 F.3d 1282, 1284 (11th Cir. 2003).
“A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. United States v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). When a defendant factually attacks a plaintiff's standing at the motion to dismiss stage, a court can “consider extrinsic evidence such as deposition testimony and affidavits” and is not “constrained to view [the facts] in the light most favorable to the plaintiff.” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335-36 (11th Cir. 2013) (citation and internal quotation marks omitted) (emphasis added). If a factual attack on a plaintiff's standing is “inextricably intertwined” with an element of the cause of action, “the proper course of action for the district court is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (internal citation and quotation omitted).
The defendants argue the Trust lacks standing because it does not have a legally cognizable interest in the Agreements or Dime's intellectual property and publicity rights. (Doc. 33, pp. 7-12). In response, the Trust contends it has standing because it owns Dime's estate's assets, including the assignment of financial benefits under the Agreements as well as intellectual property rights transferred to the Trust.[4] (Doc. 50, pp. 2-12).
The Trust's amended complaint alleges “[the Trust] is the assignee and owner of all properties and intellectual properties related to the estate of [Dime].” (Doc. 29, ¶ 1). Dean Guitars and Dime signed the 2004 Agreement under which Dime agreed to endorse a signature line of guitars designed by Dime and to be manufactured and sold by Dean Guitars. (Doc. 29, ¶ 14). Dean Guitars and Dime's estate (through Vincent Abbott) reinstated the 2004 Agreement with the 2014 Agreement.[5] (Doc. 29, ¶ 21). Although the 2014 Agreement prohibited assignments and transfers without Dean Guitar's “express prior written consent,” Dime's estate could assign the “financial benefits” of the 2014 Agreement. (Doc. 33, Ex. B; Doc. 53, Ex. B, ¶ 27).
When Vincent Abbott died in 2018, he conveyed his interest in Dime's estate to Ms. Haney by will. (Doc. 29, ¶ 26). In May 2020, Ms. Haney and Jerry Abbott (Dime's father and sole remaining heir) transferred their interest in Dime's estate to the Trust, including financial benefits under the 2014 Agreement and Dime's intellectual property interests. (Id.).
These facts sufficiently support the Trust's standing to pursue the financial benefits agreed to under the 2014 Agreement. In addition, the facts sufficiently support Jerry Abbott's and Ms. Haney's transfer to the Trust included Dime's intellectual properties. (Id.). Thus, this report recommends concluding the Trust has standing.
Federal Rule of Civil Procedure 17(a)(1) provides “every action must be prosecuted in the name of the real party in interest.” Under Rule 17, a “court may not dismiss an action for failure to prosecute in the name of the real party in interest until,...
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