Wolf v. Cowgirl Tuff Co.

Decision Date02 September 2016
Docket Number1:15-CV-1195 RP
CourtU.S. District Court — Western District of Texas

Before the Court are Plaintiffs' Second Amended Complaint, (Dkt. 22), Defendant's Motion to Dismiss in Part Plaintiffs' Second Amended Complaint, (Dkt. 23), Plaintiffs' Response to Defendant's Motion to Partially Dismiss Plaintiffs' Second Amended Complaint, (Dkt. 25), and Defendant's Reply to Response to Defendant's Motion to Partially Dismiss Plaintiffs' Second Amended Complaint, (Dkt. 26). Having considered the parties' submissions, the record in this case, and the applicable law, the Court issues the following order.


Defendant's Motion to Dismiss in Part Plaintiffs' Second Amended Complaint is a request for a dismissal based on the pleadings. This factual discussion thus draws from Plaintiffs' Second Amended Complaint. Plaintiffs Stephenie and Gabriel Wolf "are rodeo photographers whose subjects are primarily rodeo competitors." (Dkt. 22, ¶ 10). For several years, they operated under the trade name Lone Wolf Photography. (Id.). In 2015, however, they created Ma'iitsoh, LLC, a Texas Series limited liability company, of which Lone Wolf Photography became a series member. (Id.). Defendant Cowgirl Tuff Co. is a manufacturer of apparel and related accessories marketed towards participants in and fans of rodeo-related competition. (Id., ¶ 14). Defendant also sponsors rodeo competitors, including one Lisa Lockhart. (Id., ¶ 31).

This case involves four photographs taken by the Wolfs: two of Lisa Lockhart (the "LL1 photo" and the "LL2 photo"), one of Lari Dee Guy (the "LDG photo") and one of Kollin VonAhn (the "KVA photo"). (Id., ¶ 11). On or about November 6, 2013, Plaintiffs entered into a contract with Defendant that gave Defendant approximately one year to use the KVA photo subject to specific limitations. (Id., ¶¶ 16-17). Around six months later, on or about May 2, 2014, Plaintiff entered into a similar contract with Defendant for the use of the LL1 photo. (Id., ¶¶ 18-19). Upon receipt of each photo, Defendant "promptly began repeatedly breaching" its contractual obligations by, inter alia, using the photos without the required copyright credit, using the photos outside the contractually specified time frames, and providing the photos to a third-party hotel chain for use in cross-promotional marketing campaigns. (Id., ¶¶ 21-23). Defendant also obtained and used the LL2 and LDG photos without Plaintiffs' permission. (Id., ¶ 24).

Plaintiffs thereafter contacted Defendant to ask that it compensate them for its misuse of the four photos. (Id., ¶ 26). In response, Defendant sent Plaintiffs an "abusive and groundless" cease and desist letter threatening retaliatory litigation. (Id., ¶¶ 26, 34). This letter accused Plaintiffs of "attempt[ing] to profit from the Cowgirl Tuff Victory Cross through the sale or licensing of photographs that prominently display [Defendant's] work" because the shirt being worn by Lisa Lockhart in the LL1 photo purportedly displayed Defendant's copyrighted "Victory Cross" design. (Id., ¶ 29). As Plaintiffs tell it, "Defendant took the position that because the shirt that Ms. Lockhart was wearing in [the LL1 photo] may have borne some minor similarities to a design that Defendant had previously copyrighted, Plaintiffs were not legally allowed to demand that Defendant pay for [its] unauthorized use [of the photo]." (Id., ¶ 30).

Additionally, at the time Defendant sent the cease and desist letter, Plaintiffs assert that they "had contracts for several work assignments" with Equibrand, one of their long-standing, main clients. (Id., ¶31). Defendant knew or should have known of those contracts because "Equibrand and Defendant had an independent business relationship with one another separate from Plaintiffs, arising in part because Equibrand and Defendant sponsored some of the same rodeo competitors," including Ms. Lockhart. (Id., ¶¶ 31, 34). Moreover, the LL1 photograph that Defendant had licensed from Plaintiffs, along with a number of other photographs in Plaintiffs' portfolio, had been produced as a result of Plaintiffs' work for Equibrand. (Id., ¶ 31). "Plaintiffs had to seek permission before providing any images to Defendant pursuant to [their] contracts [with Equibrand], and Defendant knew of the origin of the photography." (Id.).

Defendant also purportedly "knew of the [negative] effect that the [cease and desist ] letter would have on Equibrand's willingness to continue working with Plaintiffs." (Id., ¶ 32). This knowledge was the product of its independent relationship with Equibrand along with its "nearly two decades" of experience "in the industry and in rodeo event sponsorship and promotion . . . [and its] familiarity with the commercial relationship surrounding rodeo events." (Id., ¶¶ 32-33). Further, Defendant "engaged in direct communications with Equibrand regarding Plaintiffs in the same time frame as the cease and desist letter" and "encouraged Equibrand to cease [Equibrand's] collaboration with Plaintiffs." (Id., ¶ 32). Defendant thus "knew and intended for its conduct to disrupt Plaintiffs' business relationship with Equibrand," which "had the intended effect": Equibrand subsequently sent Plaintiffs "written notice of termination terminating of all current and pending projects, specifically citing Defendant's threat of litigation as the reason for the termination." (Id.).

Without Plaintiffs' contracts with Equibrand, Plaintiffs was unable to gain access to the National Finals Rodeo. (Id., ¶ 33). Losing their access to that event prevented Plaintiffs from beingable to take photographs for future customers and from meeting sponsors and competitors from whom to generate new business opportunities. (Id.). Then, due to Defendant's conduct, Plaintiffs had to abruptly withdraw from other of Ms. Lockhart's sponsors' consideration a number of Plaintiffs' photos. (Id., ¶ 32). This purportedly cost Plaintiffs potential agreements and profits and harmed Plaintiffs' business reputation. (Id., ¶ 34).

Accordingly, Plaintiffs in their Second Amended Complaint have alleged the following claims against Defendant: (1) breach of contract, (2) copyright infringement via online media, (3) copyright infringement via print media, (4) copyright infringement via unauthorized distribution, and (5) tortious interference with existing contracts, prospective contracts, and ongoing business relationships. (Id., ¶¶ 36-48). Defendant has responded by filing a motion to dismiss Plaintiffs' tortious interference claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim upon which relief can be granted. Plaintiff has responded, Defendant has replied, and Defendant's motion to dismiss is now ripe for the Court's review.


When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be taken as true. Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); accord Hux v. S. Methodist Univ., 819 F.3d 776, 780 (5th Cir. 2016). Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief," this standard demands more than unadorned accusations, "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570. "A claim has facial plausibilitywhen the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining the plausibility of a claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679 (citation omitted). If "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]''that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679. (quoting Fed. R. Civ. P. 8(a)(2)).


Defendant asserts that Plaintiffs have failed to adequately plead their tortious interference with existing contract claim as well as their tortious interference with prospective business relations claim. It also argues that both of Plaintiffs' tortious interference claims are barred by the Noerr-Pennington doctrine. The Court addresses each of these grounds for dismissal below.

A. The Tortious Interference with Existing Contract Claim

In Texas, the elements of tortious interference with an existing contract are "(1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) the act was a proximate cause of the plaintiff's damages; and (4) actual damage or loss." Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996), cited in Cuba v. Pylant, 814 F.3d 701, 717 (5th Cir. 2016). Defendant argues that Plaintiffs have failed to sufficiently plead the first three of these elements.

i. Existence of a Contract Subject to Interference

First, Defendant argues that "Plaintiffs have failed to meet the first element [of a tortious interference with contract claim] by failing to identify a contract term subject to interference" and by "fail[ing] to designate a specific contract obligation that is the subject of interference by Defendant[]." (Dkt. 23 at 5) (citing ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT