United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
the Court is the motion of defendants Dreamers Cabaret, LLC
and 1110 Brittain Road, LLC for dismissal under Fed.R.Civ.P.
12(b)(6) of counts two and three in the amended complaint.
(Doc. No. 14 [“Mot.”].) Plaintiffs filed a
memorandum in opposition (Doc. No. 15
[“Opp'n”]), and defendants filed a reply
(Doc. No. 16 [“Reply”]). For the reasons set
forth herein, the motion is granted.
November 20, 2018, plaintiff Carmen Electra, along with
eleven (11) other plaintiffs (all of whom are allegedly
professional models), filed a complaint against defendants
Dreamers Cabaret, LLC and 1110 Brittain Road, LLC
(“defendants”) alleging that defendants have
misappropriated plaintiffs' images, likenesses, and/or
identities. On December 18, 2018, the first amended complaint
was filed, adding two additional plaintiffs, for a total of
fourteen (14). (Doc. No. 4, First Amended Complaint
[“FAC”].) The FAC sets forth causes of action for
(1) invasion of privacy by appropriation; (2) negligence; (3)
unjust enrichment; (4) violation of the Ohio Deceptive Trade
Practices Act, Ohio Rev. Code § 4165.02(A)(2) and (3);
and (5) violation of the Lanham Act, 15 U.S.C. §
allege that defendants (whom they do not distinguish in any
way in the FAC) own, operate, and control a gentlemen's
club in Akron, Ohio that operates under the names
“Dreamers of Akron” and “Dreamers
Cabaret.” (FAC ¶ 2.) The gravamen of all the
claims is that defendants posted or shared images of each
plaintiff on Facebook and other social media sites, without
permission from and/or payment to plaintiffs, for the purpose
of promoting the gentlemen's club.
seek dismissal as a matter of law of both the negligence
claim and the unjust enrichment claim.
on a Motion to Dismiss
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief[.]” Fed.R.Civ.P. 8(a)(2). Although this pleading
standard does not require great detail, the factual
allegations in the complaint “must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007) (citing authorities). In other
words, “Rule 8(a)(2) still requires a
‘showing,' rather than a blanket assertion, of
entitlement to relief.” Id. at 555, n.3
(criticizing the Twombly dissent's assertion
that the pleading standard of Rule 8 “does not require,
or even invite, the pleading of facts”) (internal
survive a motion to dismiss, 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, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570). Rule 8 does not “unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions.” Id. at 678-79. “While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations. When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id. at 679.
“The court need not, however, accept unwarranted
factual inferences.” Total Benefits Planning
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552
F.3d 430, 434 (6th Cir. 2008) (citing Morgan v.
Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.
state a claim for negligence under Ohio law, a plaintiff must
show: “(1) the existence of a legal duty, (2) the
defendant's breach of that duty, and (3) injury
[resulting proximately from] defendant's breach.”
Wallace v. Ohio Dep't of Commerce, 773 N.E.2d
1018, 1025-26 (Ohio 2002). “The duty element of
negligence . . . is a question of law for the court to
determine.” Id. at 1026.
argue that they are entitled to dismissal of the negligence
claim as a matter of law because plaintiffs are suing for
purely economic losses, without alleging any tangible harm to
person or property. They also claim that “‘[i]n
the absence of privity of contract between two disputing
parties the general rule is there is no duty to exercise
reasonable care to avoid intangible economic loss or losses
to others that do not arise from tangible physical harm to
persons and tangible ...