Smith v. Mikki More, LLC

• Citation: 59 F.Supp.3d 595
• Decision Date: 09 October 2014
• Docket Number: No. 13cv3888 DLC.,13cv3888 DLC.
• Parties: Adam SMITH, Frank D'Angelo, and Dawn Jasper, Plaintiffs, v. MIKKI MORE, LLC, Vincent Pacifico, and Darian Braun, Defendants.
• Court: U.S. District Court — Southern District of New York

59 F.Supp.3d 595

Adam SMITH, Frank D'Angelo, and Dawn Jasper, Plaintiffs

v.MIKKI MORE, LLC, Vincent Pacifico, and Darian Braun, Defendants.

No. 13cv3888 DLC.

United States District Court, S.D. New York.

Signed Oct. 9, 2014.

Romeo Salta, Charles H. Knull, New York, NY, for plaintiffs.

Frank M. Graziadei, New York, NY, for defendants.

OPINION & ORDER

DENISE COTE, District Judge:

Plaintiffs Adam Smith (“Smith”), Frank D'Angelo (“D'Angelo”), and Dawn Jasper (“Jasper”) bring this action in connection with work they performed in support of a line of haircare products created by defendant Darian Braun (“Braun”) under the brand name “Mikki More” (the “Mikki More Products”). Plaintiffs have sued Braun, his former partner Vincent Pacifico (“Pacifico”), and their company Mikki More, LLC for, among other things, misappropriating labels, marketing materials, and a website that plaintiffs created for the Mikki More Products in exchange for payment they never received. The parties have crossed-moved for summary judgment. For the reasons stated below, plaintiffs' motion is granted in part and defendants' motion is denied.

BACKGROUND

I. The Parties' Failure to Abide by Local Rule 56.1

The parties' factual disputes are difficult to parse here because the parties failed to follow the Southern District's Local Rules (the “Local Rules”). Local Rule 56.1 requires a party moving for summary judgment to submit a short and concise statement, in numbered paragraphs, of the material facts as to which that party contends there is no genuine issue to be tried. Local Rule 56.1(a). A party opposing a motion for summary judgment is to respond to each paragraph in “a correspondingly numbered paragraph”; each paragraph is deemed admitted for purposes of this motion if not “specifically controverted by a correspondingly numbered paragraph.” Id. at 56.1(b), (c). If necessary, the opposing party shall offer its own statement of additional undisputed material facts. Id. at 56.1(b). The parties' statements, including statements controverting any statement of material fact, must be followed by citation to admissible evidence. Id. at 56.1(d).

Here, defendants submitted a Rule 56.1 Statement of Undisputed Material Facts in support of their motion for summary judgment that largely complied with the rule (the “Statement of Facts”). Plaintiffs, in response, submitted a single Rule 56.1 Counterstatement of Undisputed Material Facts (the “Counterstatement of Facts”). The first 89 paragraphs of plaintiffs' Counterstatement of Facts correspond in some fashion to the 89 paragraphs of defendants' Statement of Facts. Where plaintiffs did not dispute defendants' statement of fact, plaintiffs simply reproduced that paragraph. Where plaintiffs' account differed, however, plaintiffs did not directly engage with defendants' paragraph. Instead, plaintiffs simply inserted a new paragraph about the same topic, even where it did not directly respond to defendants' paragraph. For instance, in their Statement of Facts, defendants assert:

17. In order to try to develop for marketing and selling the Mikki More Hair Products, Braun had samples made and started designing labels and trade dress for the products. Braun Aff., ¶ 12.

Plaintiffs' response is as follows:

17. D'Angelo showed Braun a picture of a prototype “Italian motif” bottle which he had developed with co-plaintiff, Adam Smith. The bottle was black and gold and said “Mikki More” on it. It was D'Angelo's idea to put “Mikki More” on the packaging design. D'Angelo Dec. para. 6.

Plaintiffs do not state whether they concede that “Braun had samples made,” and they merely imply that it was D'Angelo and Smith, not Braun, who “started designing labels and trade dress.” Defendants' statements of fact are deemed admitted to the extent plaintiffs have not “specifically controverted” them. Local Rule 56.1(c).

Following these 89 purportedly responsive paragraphs, plaintiffs' Counterstatement of Facts includes another 64 paragraphs of additional facts they claim are undisputed. Defendants filed a Response to the Counterstatement of Facts (the “Response to the Counterstatement”), responding to each of the paragraphs in the Counterstatement. At several points, defendants respond, “Admitted, but immaterial”; at other points, defendants decline to state whether plaintiffs' statement is admitted and instead simply respond “Immaterial,” without citation to the record. Because these responses do not “specifically controvert[ ]” plaintiffs' statement and are not followed by citations to record evidence, they are deemed admissions. Local Rule 56.1(c), (d).

II. Relevant Facts

The relevant facts are set out below. Unless otherwise noted, these facts are undisputed.

A. D'Angelo and Braun Meet.

Plaintiff D'Angelo met defendant Braun in the Fall of 2011. At that time, D'Angelo learned that Braun had created a hair balm and planned to market it under the “Rock Care” label and a “rock and roll graffiti theme.” Braun had created a company, Rock Care, Inc. (“Rock Care”), through which to operate this business.

Braun hired plaintiff Smith, a freelance graphic designer with fifteen years of experience, to design labels, packaging, and advertisements for the Mikki More Products. The two signed an agreement on November 20, 2011, under which Smith was to be paid $30 per hour in exchange for “[c]onceptual product designs for Mikki More beauty products to specifications for national product line.” Smith billed Braun via invoice. These invoices show that Smith worked as well on two other design projects for Braun in the Fall of 2011: a “Carmen Electra Product” and an “Ariana Grande Product.” Defendants never provided Smith with employee benefits or treated Smith as an employee for tax purposes.

Sometime that Fall, D'Angelo learned that Braun needed money to launch his business. D'Angelo went in search of investors, meeting with Jamie Mazzei (“Mazzei”), the owner of Nubest, a high-end hair salon in Long Island, New York. Mazzei liked the product but not the label, telling D'Angelo it would be a “waste of time” to “show [him] the graffiti bottle again.” D'Angelo relayed this to Braun.

B. A New Look

Braun decided to jettison the “Rock Care” label and create the “Mikki More” brand, named for his girlfriend Michela Moresco (“Moresco”), which would adopt an Italian style. The parties dispute the genesis of this idea. D'Angelo claims that he suggested that they “go Italian” and try “something in a black bottle with some gold lettering,” because their potential investors were Italian. Braun claims he independently selected an Italian theme based around Moresco's persona.

Smith designed the Mikki More Products' labels in black and gold, although the parties dispute D'Angelo's and Braun's involvement in that process. In particular, Smith designed a distinctive double-spiral figure, gold against a black backdrop, which is reproduced here (the “Double Spiral”):

The Double Spiral features prominently in the Mikki More Products' labels, as well as packaging, advertising copy, and other promotional materials.

D'Angelo and Smith aver that Smith designed the label with D'Angelo's input and direction, and that D'Angelo then showed Braun a picture of a prototype. Braun claims that Smith sent him five designs which he reviewed with Moresco, and that he asked Smith for additional designs based on “a sample” provided by Braun.¹

C. Production Begins and Braun and D'Angelo Reach An Agreement.

After showing this prototype to Mazzei, Braun and D'Angelo contacted a bottle manufacturer and ordered four thousand bottles using Smith's design. D'Angelo asserts that he paid for this order; defendants deny this, with no citation to the record.

By this time, Braun and D'Angelo had reached an agreement about D'Angelo's role, although the parties dispute its substance. Braun contends that he gave D'Angelo a 2% interest in the venture and promised D'Angelo 20% “if he could provide investors who would contribute substantial capital.” D'Angelo contends that Braun promised D'Angelo a 20% stake if D'Angelo would “put up the money to launch the Mikki More product and get it off the ground.”²

Through a childhood connection of Braun's, D'Angelo met with the principals of Ricky's, a New York chain store interested in distributing the Mikki More Products, in January 2012. At one such meeting, D'Angelo met Smith in person. After that time, the two collaborated on the artwork for promotional and advertising material for the Mikki More Products. D'Angelo claims that Braun was uninvolved because he was in Italy during this time; Braun asserts he went to Italy months earlier and that he “collaborated and took part in the planning and execution of the initial sales through Ricky's.” D'Angelo dealt with the printer and worked with Smith to fine-tune the print ads and posters.

Distribution of the Mikki More Products to spas, salons, and other distributors began sometime in 2012. Mikki More, LLC filed to register “Mikki More” as a trademark with the United States Patent and Trademark Office on September 21, 2012 and with the Office for Harmonization in the International Market on April 9, 2013.

D'Angelo also owned a pizza shop in Manhattan (the “Pizza Shop”). All Mikki More invoices, artwork, and products were kept at D'Angelo's Pizza Shop.

D. The Mikki More Website

Sometime before January 2012, Braun had hired Steve White (“White”) to create Mikki More's website. Moresco was unhappy with White's work and called it “schematic and heartless.”

In February 2012, Braun hired plaintiff Jasper to attend to social media for the Mikki More Products and double as an administrative assistant to Braun. Braun agreed to pay her $1,200 per month for the first three months and $3,000 per month thereafter, although the two never signed a contract. Defendants never withheld any taxes for Jasper, paid any payroll taxes on her behalf, or granted her any employee benefits. Jasper's work included contacting beauty bloggers, writing content for social media...