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Electra v. Dreamers Cabaret, LLC

United States District Court, N.D. Ohio, Eastern Division

July 18, 2019

CARMEN ELECTRA, et al., PLAINTIFFS,
v.
DREAMERS CABARET, LLC, et al., DEFENDANTS.

          MEMORANDUM OPINION AND ORDER

          SARA LIOI JUDGE

         Before 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.

         I.BACKGROUND

         On 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. § 1125(A).

         Plaintiffs 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.

         Defendants seek dismissal as a matter of law of both the negligence claim and the unjust enrichment claim.

         II. DISCUSSION

         A.

         Standard on a Motion to Dismiss

         A 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 citation omitted).

         “To 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. 1987)).

         B. Negligence

         To 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.

         Defendants 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 ...


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