Oliver v. Meow Wolf, Inc.

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Parties: LAUREN ADELE OLIVER, Plaintiff, v. MEOW WOLF, INC. et al., Defendants.
• Docket Number: Civ. No. 20-237 KK/SCY
• Decision Date: 25 November 2020

LAUREN ADELE OLIVER, Plaintiff,
v.
MEOW WOLF, INC. et al., Defendants.

Civ. No. 20-237 KK/SCY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

November 25, 2020

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on: (1) Defendants' Partial Motion to Dismiss (Doc. 32) ("Motion"), filed August 3, 2020; and, (2) Plaintiff's Request for Judicial Notice (Doc. 36) ("Request"), filed August 24, 2020. Plaintiff filed a response in opposition to Defendants' Motion on August 24, 2020, and Defendants filed a reply in support of it on September 14, 2020. (Docs. 35, 44.) Defendants, in turn, filed a response in partial opposition to Plaintiff's Request on September 14, 2020, and Plaintiff filed a reply in support of it on September 27, 2020. (Docs. 45, 47.) Having reviewed the parties' submissions, the record, and the relevant law, taking judicial notice of certain documents in Plaintiff's Request, and being otherwise sufficiently advised, the Court FINDS that Defendants' Motion is well taken in part. Plaintiff's conversion claims are hereby dismissed without prejudice to her ability to file an amended complaint within thirty (30) days of entry of this Order, and in all other respects the Court denies Defendants' Motion.

I. Factual Background and Procedural History

In her Complaint for Violation and Threatened Violation of the Visual Artists Rights Act, Copyright Infringement, Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Unjust Enrichment, Conversion, Misrepresentation, and Constructive Trust (Doc. 1)

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("Complaint"), Plaintiff Lauren Adele Oliver alleges the following.¹ In or about 2006, Plaintiff first sketched "the Space Owl," an original "owl-like alien . . . with horns and a face visor." (Doc. 1 at 3.) She developed, created, and exhibited versions of this character in various art media and venues through at least 2015, placing the Space Owl at the center of "a climate change-themed art project" entitled "Ice Station Quellette" ("ISQ"). (Id. at 3-4.) Plaintiff holds registered copyrights for the Space Owl and ISQ. (Id. at 11.)

Defendant Meow Wolf, Inc. ("MWI") is a Delaware corporation formed in November 2016. (Doc. 1 at 2; Doc. 37-4.²) Defendant Vince Kadlubek was at relevant times a director and/or officer of Defendant MWI. (Doc. 1 at 2.) Before Defendant MWI's incorporation, "Meow Wolf" was an "artists' collective" that acted through Defendant Kadlubek and other representatives.³ (See id. at 3-6.)

In late 2014 or early 2015, Meow Wolf representatives began to solicit proposals for a "permanent flagship project" called the "House of Eternal Return" ("HoER"). (Id. at 4.) The HoER was to be a "jam-packed art playland" featuring the works of "dozens of artists," installed in a former bowling alley leased to Meow Wolf for a nominal sum. (Id. at 4-5, 9.)

In early 2015, Meow Wolf representatives asked Plaintiff to install ISQ in the HoER. (Id. at 4.) "In exchange for [Plaintiff's] timely installation of ISQ at [the] HoER without initial compensation," these representatives, including Defendant Kadlubek, "offered [Plaintiff]

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membership in the Meow Wolf artists' collective and a right to receive a share of Meow Wolf's revenue." (Id. at 5, 17.)

Meow Wolf's representations constituted an offer: If [Plaintiff] agreed to invest the time and resources necessary to become an original participating artist in [the HoER], [she] might not be paid if the venture failed, but would proportionally share in Meow Wolf's success should it take off.

(Id. at 5.) Plaintiff accepted this offer "and expended months of her time and considerable personal resources designing and installing a version of ISQ, including a robust version of the Space Owl, at the HoER." (Id. at 6.)

The HoER opened in March 2016. (Id. at 12.) It was "a monumental success, generating tens-of-millions in revenue in its first four years." (Id. at 11.) As a result, Defendant MWI became "an artistic enterprise . . . valued at hundreds of millions of dollars," with "huge profit margins" and "hundreds of employees." (Id. at 6, 11.) The Space Owl, in particular, "became an instant fan favorite" and "a highly recognizable, iconic element" of the HoER, appearing in "countless social media posts" and "[n]umerous local, national, and international press articles." (Id. at 12.)

In 2017 or 2018, Defendants began to call artists' compensation a "[b]onus [p]rogram" rather than a revenue share. (Id. at 6.) Also, in 2018, Plaintiff discovered that Defendants were "making money from the ISQ without compensating or crediting [her]," including from a coloring book and a coffee table book sold in the HoER gift shop. (Id. at 7, 12-13.) Thus, around April 2018, Plaintiff "decided the parties needed to formalize their agreement and relationship." (Id. at 7.) When negotiations failed to produce a formal agreement by June 2018, Plaintiff asked Defendant MWI to "stop using the Space Owl until their relationship had been formalized." (Id.) Nevertheless, in December 2018, Plaintiff learned that Defendant MWI "had used the Space Owl" in a "self-made puff-piece documentary." (Id. at 8.)

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In June 2019, Plaintiff met with Defendant Kadlubek. (Id.) Until that meeting, Plaintiff had "trusted that Defendants would at some point negotiate a reasonable method of compensation in keeping with her contribution and status as a member of the Meow Wolf artists' collective." (Id. at 14.) At the meeting, however, Defendant Kadlubek offered Plaintiff a "cruel ultimatum," i.e., either "sell [Defendant MWI] all rights to the Space Owl for a nominal sum and end the relationship or remove ISQ from [the] HoER without additional compensation and end the relationship." (Id. at 8-9, 14.) In the months following the meeting, Plaintiff continued to try to "negotiate a fair resolution" but Defendants' position remained the same. (Id. at 9.) Meanwhile, Defendant MWI "repeatedly threatened [Plaintiff] with the removal of ISQ without her permission." (Id. at 10.) "Because of the way it is constructed, removal of the installation would require its destruction, including the destruction of the Space Owl." (Id.)

A "significant portion" of Defendant MWI's success and value is "attributable to the ISQ, and its iconic Space Owl." (Id. at 15.) Nevertheless, to date, Plaintiff has received only $2,000 from Defendants for her installation of ISQ at the HoER, which does "not even cover the personal funds she . . . expended for the installation." (Id. at 8, 15.)

Plaintiff filed this civil action against Defendants MWI and Kadlubek and fifty Doe Defendants on March 16, 2020. (Id. at 1-2.) In her complaint, Plaintiff asserts claims for copyright infringement, violation of the Visual Artists Rights Act ("VARA"), breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, conversion, intentional misrepresentation, negligent misrepresentation, and constructive trust. (Id. at 15-21.) Based on these claims, she seeks injunctive relief, compensatory, punitive, and statutory damages, equitable relief including disgorgement of unjust enrichment and conveyance of an ownership interest in "the Meow Wolf artists' collective," and attorney's fees and costs. (Id. at 22-24.) In their Motion,

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Defendants ask the Court to dismiss all of Plaintiff's claims against Defendant MWI except her copyright infringement and VARA claims, and all of her claims against Defendant Kadlubek. (Doc. 32-1 at 5.) In opposing the Motion, Plaintiff asks the Court to take judicial notice of five documents not attached to or incorporated into her Complaint. (Doc. 36 at 1-2.)

II. Analysis

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted); Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; Walker, 947 F.3d at 1249. "The complaint does not need detailed factual allegations, but the factual allegations must be enough to raise a right to relief above the speculative level." Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1234 (10th Cir. 2020).

In determining whether a complaint states a plausible claim to relief, courts "accept as true all well-pleaded factual allegations in [the] complaint and view these allegations in the light most favorable to the plaintiff." Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (quotation marks omitted). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not count as well-pleaded facts." Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018) (quotation marks omitted).

Courts evaluating a motion to dismiss may consider not only the factual allegations in the complaint, "but also the attached exhibits and documents incorporated into the complaint by reference." Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d

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1194, 1201 (10th Cir. 2011). Courts may also consider documents not attached to or specifically incorporated into the complaint if the complaint refers to the documents, the documents are central to the plaintiff's claim, and the parties do not dispute their authenticity. Prager v. LaFaver, 180 F.3d 1185, 1189 (10th Cir. 1999); Hill v. Vanderbilt Capital Advisors, LLC, 834 F. Supp. 2d 1228, 1247 (D.N.M. 2011). Finally, on a Rule 12(b)(6) motion, courts may take judicial notice of appropriate facts and records. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006); Hill, 834 F. Supp. 2d at 1247. The Court will consider Plaintiff's Request and...