Moreland et al v. Atwells Realty Corp. d/b/a Club Desire et al, No. 1:2019cv00493 - Document 15 (D.R.I. 2020)
Court Description: MEMORANDUM AND ORDER granting in part and denying in part 9 Motion to Dismiss - So Ordered by Chief Judge John J. McConnell, Jr. on 1/21/2020 (Barletta, Barbara)
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Moreland et al v. Atwells Realty Corp. d/b/a Club Desire et al Doc. 15 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND ) ) ) ) ) ) ) TARA LEIGH PATRICK a/Ida CARrviEN ELECTRA; DENISE MILANI a/k/a DENISE TRLICA; JAI!VIE EDMONDSON· LONGORIA; JENNIFER vV ALCOTT a/k/a JENNIFER ARCHULETA; INA SCHNITZER a/k/a JORDAN CARVER; ) ) LUCY PINDER; and ROSA ACOSTA, ) ) ) ) v. ) THE CADILLAC LOUNGE, L.L.C. and ) ) NANCY L. SHAPPY, ) ) Defendants. C.A. No. 18·494-JJM-PAS Plaintiffs, ____________________ ) ) ANDRA CHERI MORELAND aik/a ANA CHERI; ARIANNY CELESTE LOPEZ; TARA LEIGH PATRICK a/k/a CARMEN ELECTRA; JAIME EDMONDSON-LONGORIA; JESSICA HINTON a/k/a JESSA HINTON; MARIANA DAVALOS; ROSA ACOSTA; and TIFFANYTOTH GRAY a/Ida TIFFAI\TY TOTH, Plaintiffs, v. ATWELLS REALTY CORP. and GERARD DISANTO II, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C.A. No. 19·L193·JJM-PAS ) ______________ ) Dockets.Justia.com MEMORANDUM AND ORDER JOHN J. MCCONNELL, JR., Chief Judge, United States District Court. Plaintiffs in these related cases are well·known professional models. Defendants Cadillac Lounge and Atwells Realty Corporation (d/b/a Club Desire) are adult entertainment establishments and Defendants Nancy Shappy and Gerard DiSanto II are owners of these two businesses, respectively. Plaintiffs filed their complaints in Soptomber 2019, alleging that they are not affiliated with these businesses and yet Defendants misappropriated and intentionally altered their images to create a false impression to consumers that each Plaintiff worked at, endorsed, or were otherwise associated or affiliated with these establishments when that was false. According to tho complaints, their images appeared in advertisements for these two clubs between February 2012 through March 2019. Plaintiffs bring claims under tho Lanham Act, 15 U.S.C. § 1125(a)(1)(A & B) (false association and false advertising); R.I. Gen. Laws §§ 9·1·28 for unauthorized use of name, portrait, or picture; R.I. Gen. Laws §§ 9·1·28.1 for Right to Privacy; common law right of publicity; 1 and state common law claims for defamation, negligence, conversiOn, unjust enrichment, and quantum meruit. Tho Cadillac Lounge and Club Desire move for partial dismissal, asserting that the statute of limitations bars all of some of the Plaintiffs' claims and some of tho claims of tho remaining Plaintiffs. ECF No. 12 (C.A. No. 19·494), ECF No. 9 (C.A. Defendants move to dismiss Plaintiffs' Count Four for common law right to publicity. In their opposition, Plaintiffs concede that this claim should be dismissed. The Court therefore DISMISSES Count Four of Plaintiffs' Complaints. 1 2 r l No. 19·493). Individual defendants Nancy L. Shappy and Gerard DiSanto II also move to dismiss all claims against them for failure to state a claim. The Lanham Act Claims (Counts 1 and 2) Congn)ss did not include a statute of limitations in the Lanham Act. and no federal or state court has set a statute oflimitations in a Lanham Act case. The Court will not ignore the plain wording of the statute and declines to inappropriately legislate by writing a limitations period into the Lanham Act where there is none. There is a body of casolaw, however, whore courts have used the doctrine of laches in determining whether a Lanham Act claim should be dismissed because it was "untimely" filed. J~?ndy Cmp. v. Jl1alone & lf.vde, Inc., 769 F.2d 362, 365 (6th Cir. 1985); Conopco, Inc. v. Cfllnpbell Soup Co., 95 F. 3d 187, 191 (2d Cir. 1996) ("[b]ecause the Lanham Act establishes no limitations period for claims alleging unfair competition or false advertising, and because there is no corresponding federal ·statute of limitations, [courts] look to 'tho most appropriate' or 'the most analogous' state statute of limitations for laches purposes."); See, e.g:, Saratoga Vichy Sp1ing Co., Inc. v. Lehman, 625 F.2d1037, 1040 (2d Cir. 1980). Defendants point to R.I. Gen. Laws § 9·1·14(b) as the most analogous state statute and seek application of its three·year statute of limitations, arguing that it applies because Plaintiffs' claims are rooted in personal injuries, which are covered by§ 9·1·14(b). But here, Defendants have not plod a laches defense and affirmatively state that they "do not presently seek judgment on the ground of laches." So because there is no statute of limitations for the Lanham Act and because laches is not being 3 asserted, the Court will not apply § 9-1-H(b)'s three-year statute of limitations to Plaintiffs' federal claims. Defendants' Motion to Dismiss on these grounds is DENIED. State Statutory and Common Law Claims (Counts 3, 5, 6, 7, and 8) The Rhode bland General Assembly did not write a statute of limitations into H.I. General Laws§§ 9-1-28 and 9-1-28.1 outlining violations of the right to privacy and unaut.hmized use of name, portrait, 01' picture either. Defendants also advocate that the three·yoar limitation sot forth in§ 9·1-H(b) covering "injuries to the person" be extended to the so two sections and to Plaintiffs' common Ia w claims for defamation, negligence, and conversion. Application of this statute of limitations would result in a bar to Plaintiffs' claims related to images published more than three years before the filing- of these suits. Plaintiffs arg-ue that§ 9·1·14(b)'s three-year statute of limitations does not apply to tho statutory violations or common law claims alleged in their complaint because those claims do not relate to injuries to their persons, but to damage of their pmpert.y because their name, image, and reputation are valuable assets. They also argue that the continuing tmt doctrine applies to their facts so a wooden application of the three-year statute of limitations would be enor. "Under the continuing tort doctrine, where a tort involves a continuing or repeated injury, the limitations period docs not begin to nm until the elate of the last injury or the date the tortious acts cease." Boudremi v. Automatic Temperature Controls, Inc., 212 A.3cl 594, 602 (R.I. 2019) (quoting 54 C.J.S. Continuing Torts§ 223 at 258 (2010)). 4 The statute of limitations should be tolled, Plaintiffs argue, because Defendants engaged in a continuing, predatory, and exploitative advertising scheme based on the misappropriation of their images. The Court declines to read a statute of limitations into statutory sections that do not have them. i\nd because there are insufficient facts now known to test the theory of the continuing tort doctrine, Defendants' motion on these grounds is DENIED WITHOUT PREJUIDCE and may be renewed after discovery is completed. Equitable Claims (Counts 9 and 10) Defendants also move to dismiss Plaintiffs' unjust enrichment and quantum meruit claims, arguing that they derive from a common law right that Rhode Island law docs not recog·nize, citing fTIJJson v. UTCLabs, LLC, C.A. No. 15·101S, 2017 vVL ~l324759, at *4·5 (D.IU. April 27, 2017). HIJJson rested its conclusion on an interpretation of New York law and acknowledged that the Rhode Island Supreme Court has not directly answered whether the statutory claims here are exclusive such that equitable claims are not allowecl.2 The Com·t must conclude that if the Rhode Island Supreme Court believed that the state privacy statute preempted all common law claims, it would have so explicitly stated. That type of constraint is within the province of either the Rhode Island General Assembly or state courts, not this Court Moreover, the :Magistrate Judge in Wilson found that tho plaintiff in that case sought to disguise an equitable claim as a statutory claim, justi(ying its conclusion that he could not do both. It is not clear from the allegations in Plaintiffs' complaints here that they seck to do the same; their unjust enrichment and quantum meruit allegations differ from their right to privacy allegations. 2 5 in this case. Therefore, this Court declines to dismiss Plaintiffs' unjust enrichment and quantum meruit claims. Claims Against Nancy L. Shappy and Gerard DiSanto II Plaintiffs have sued Nancy L. Shappy and Gerard DiSanto II in their capacity as principals, owners, and/or CEOs of the Cadillac Lounge and Club Desire, alleging that they arc liable because they maintained operational control over those businesses, including all advertising relating thereto. There arc no further allegations made against either Ms. Shappy or Mr. DiSanto directly. Ms. Shappy and Mr. DiSanto cannot be hold personally liable simply as a principal, owner, or officer of a limited liability corporation. Escude Cruz v. Ortlw Plmrm. CmyJ., G19 F.2d 902, 907 (1st Cir. 1980) (quoting LolN1to v; Ptzv Less Drug Stores, 2Gl F.2d<10G, 408-09 (lOth Cir. 1958)) ("merely being an officer or agent of a corporation does not render one personally liable for a tortious act of tho . ") . But "if an officer or agent of a corporation directs or participates corporat.wn actively in the commission of a tortious act or an act from which a tort necessarily follows or may reasonably be oxpoctocl to follow, he is personally liable to a third person for injuries proximately resulting therefrom." Id. An officer or an agent must give "[s]pecific direction or sanction of, or [have] active participation or cooperation in, a positively wrongful act of commission or omission which operates to the injury or prejudice of tho complaining party" in order "to generate individual liability in damages." Id. Here, Plaintiffs fail to plead enough plausible facts to siipport the legal conclusion that Ms. Shappy or !VIr. DiSanto directed, sanctioned, or actively G participated or cooperated in, a positively wrongful act of commission or omission that injured tho Plaintiffs. Defendants' Motions to Dismiss Ms. Shappy and !VIr. DiSanto are GRANTim. Conclusion The Comt GRANTS IN PART and DENIES IN PART Defendants' Motions to Dismiss. All claims against Defendants Nancy L. Shappy and Gerard DiSanto II are dismissed. The Tvlotions to Dismiss are otherwise denied. ECF No. 12 (C.A No. 19494), ECF No. 9 (C.A. No. 19-493). John J. McConnell, Jr. Chief Judge United States District Court January 21, 2020 7
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