Posada v. Parker Promotions, Inc.
| Decision Date | 05 May 2023 |
| Docket Number | 4:22-CV-121 (CDL) |
| Parties | LINA POSADA, et al., Plaintiffs, v. PARKER PROMOTIONS, INC., et al., Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
Plaintiffs are professional models who allege that Defendants used their images without permission to promote Defendants' strip club, Club Fetish. Plaintiffs brought this action under Section 43 of the Lanham Act, 15 U.S.C. § 1125, and Georgia law. Defendants Parker Promotions, Inc., and Nicholas Parker (“Defendants”) moved to dismiss this action, arguing that Plaintiffs' claims are all time-barred. As discussed below, the motion to dismiss (ECF No. 16) is granted in part and denied in part.
“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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In other words, the factual allegations must “raise a reasonable expectation that discovery will reveal evidence of” the plaintiff's claims. Id. at 556. But “Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable.'” Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).
Plaintiffs allege that Defendants posted advertisements for Club Fetish featuring their images, on Instagram and Facebook in February 2017 (Posada), March 2017 (Moreland) and June 2018 (Acosta). Am. Compl. ¶¶ 30, 33, & 36, ECF No. 12; Am Compl. Exs. A, B, & C, ECF No. 12-1. Plaintiffs further allege that they have never worked for Club Fetish, have never endorsed Club Fetish, and have never authorized any of the Defendants to use their images to promote Club Fetish. There is no allegation that Defendants reposted any of Plaintiffs' images after June 2018. But, according to Plaintiffs, their images still appeared on Defendants' social media sites on the date of their complaint, August 10 2022.
Plaintiffs assert the following claims against Defendants (1) false advertising under § 43 of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B); (2) false association under § 43 of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A); (3) common law right of publicity; (4) common law right of privacy - false light; (5) violation of Georgia's Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1370 et seq.; (6) defamation; (7) negligence; (8) unjust enrichment; and (9) quantum meruit.[1]
Defendants contend that all of Plaintiffs' claims are barred by the doctrine of laches. Defendants also assert that Plaintiffs' state law claims are time-barred under the applicable statutes of limitation. The Court addresses each argument in turn.
Defendants argue that this action should be dismissed based on the equitable defense of estoppel by laches.[2] Defendants contend that, because Plaintiffs allege that Defendants first published advertisements containing their images more than four years before Plaintiffs brought this action, laches applies as a matter of law. But laches depends on “a consideration of the particular circumstances, including the length of the delay in the claimant's assertion of rights, the sufficiency of the excuse for the delay, the loss of evidence on disputed matters, and the opportunity for the claimant to have acted sooner.” Angel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1207 (11th Cir. 2008) (alteration adopted) (internal quotation marks and citation omitted). “In the context of trademark infringement, a defendant invoking laches typically must show the plaintiff inexcusably delayed in enforcing its trademark rights, thereby causing the defendant undue prejudice.” Id. Critically, as Defendants acknowledge, the clock for calculating delay does not begin to run at least until the plaintiff knows or should know that the defendant misappropriated her images. At this stage in the litigation, the Court must accept the allegations in the Complaint as true and draw all reasonable inferences in Plaintiffs' favor. The Complaint does not contain any allegations on when Plaintiffs first discovered the alleged misappropriation of their images. Accordingly, the Complaint does not establish that Plaintiffs unreasonably delayed bringing this action, and Defendants' motion to dismiss based on laches is denied.
Plaintiffs assert seven overlapping state law claims based on Defendants' alleged misappropriation of their images and the unauthorized use of those images to promote Club Fetish. Defendants contend that all of Plaintiffs' state law claims are time-barred. There are slight differences between those claims, including which statute of limitations applies and when each cause of action accrued under the law. Citing dicta from non-binding precedent, Plaintiffs argue that none of this matters and that Plaintiffs will suffer injury each day, starting the clock anew, until Defendants remove Plaintiffs' images from their social media sites. But Plaintiffs cited no binding precedent establishing such an indefinite accrual rule. The Court understands that under Georgia's continuing tort doctrine, the limitation period for a personal injury tort involving continuing wrongful conduct does not begin to run until damage caused by the tortious act occurs. Everhart v. Rich's, Inc., 194 S.E.2d 425, 428 (Ga. 1972) (). But that doctrine does not apply to a single tortious act, such as publication of a defamatory social media post. See N. Atlanta Golf Operations, LLC v. Ward, 870 S.E.2d 814, 821-22 (Ga.Ct.App. 2022) (). Here, Plaintiffs do not allege that Defendants re-posted any of Plaintiffs' images after June 2018 or altered the original posts in a way that made it likely for a new audience to see them. Thus, Plaintiffs' “continuing violation” argument fails, and the Court must evaluate the timeliness of each claim.
Defendants contend that Plaintiffs' right of publicity claims are “invasion of privacy” claims governed by Georgia's two-year statute of limitations for injury to the person, O.C.G.A. § 9-3 33. Georgia courts do generally categorize a right of privacy claim based on misappropriation of a person's likeness as an “invasion of privacy” tort. Bullard v. MRA Holding, LLC, 740 S.E.2d 622, 626 (Ga. 2013); Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v. Am. Heritage Prods., Inc., 296 S.E.2d 697, 702 (Ga. 1982). But Georgia courts recognize a “fundamental distinction” between invasion of privacy causes of action “involving injury to feelings, sensibilities or reputation and those involving an appropriation of rights in the nature of property rights for commercial exploitation”-with a corresponding distinction in the measure of damages for such claims. Martin Luther King, Jr., Ctr., 296 S.E.2d at 703 (quoting Cabaniss v. Hipsley, 151 S.E.2d 496, 504 (Ga.Ct.App. 1966)). Accordingly, the Court finds that Plaintiffs' right of publicity claims are claims for injury to personalty subject to the four-year statute of limitations for such claims, O.C.G.A. § 9-3-31.
Under O.C.G.A. § 9-3-31, a cause of action for injury to personal property must be brought “within four years after the right of action accrues.” Id. A cause of action accrues on the date of injury, which is generally the date when a “plaintiff has a complete and present cause of action.” SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 580 U.S. 328, 337 (2017) (quoting Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 670 (2014)). Some claims “are subject to a ‘discovery rule' under which the limitations period begins when the plaintiff discovers or should have discovered the injury giving rise to the claim,” but “that is not a universal feature of statutes of limitations.” Id. In Georgia, absent a statutory provision providing a discovery rule, the rule is generally confined to cases of bodily injury that develop over time, and it does not apply to property damage claims. Corp. of Mercer Univ. v. Nat'l Gypsum Co., 368 S.E.2d 732, 733 (Ga. 1988). O.C.G.A. § 9-3-31 does not provide a discovery rule for injury to personalty claims. So, Plaintiffs' right of publicity claims accrued when Defendants posted the advertisements containing their images. Plaintiffs were required to assert such claims within four years, regardless of when they discovered the advertisements. They did not, so their right of publicity claims are time-barred.
In addition to their right of publicity claims, Plaintiffs assert claims under Georgia's Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. That Act prohibits a person from causing a likelihood of confusion as to affiliation or connection with another. O.C.G.A. § 10-1-372(a)(3). It also prohibits a person from representing that their goods or services have sponsorship or approval that they do not have. O.C.G.A. § 10-1-372(a)(5). Georgia's Deceptive Trade Practices Act does...
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