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Lindley v. Puccino's, Inc.

United States District Court, E.D. Louisiana

September 25, 2019

KIRBY LINDLEY
v.
PUCCINO'S, INC. AND PRO SIGNS & GRAPHICS LLC

         SECTION: "S" (5)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.

         IT IS HEREBY ORDERED that defendant's Motion to Dismiss First Amended Complaint (Rec. Doc. 25) is GRANTED in part and DENIED in part, and plaintiff's federal common law claims and Texas state law claims are dismissed.

         BACKGROUND

         Plaintiff Kirby Lindley is a state pageant title holder, including the former Miss Texas Teen USA 2017 and runner up for Miss Texas USA 2019, and a professional working model. She also has a social media presence including 17, 000 Instagram followers.

         Puccino's, Inc. ("Puccino's") is a Metairie, Louisiana based coffee house, and Pro Signs & Graphics LLC ("Pro Signs") is a Kenner, Louisiana advertising company which was retained by Puccino's in an advertising campaign known as the "Farmer's Daughter" campaign.

         In connection with the campaign, Pro Signs created printed material which included the following image in which Lindley's head was cropped from a modeling image and placed on another model's body:

         (Image Omitted)

         Lindley did not authorize this use of her image, and first learned of it through social media. Pro Signs has acknowledged that it misappropriated the image. Lindley subsequently filed suit against the defendants alleging, inter alia, violations of the Lanham Act, Louisiana state law claims under 2315, and for misappropriation/theft, unjust enrichment, and violations of the Louisiana tradmark laws and the Louisiana Unfair Trade Practices Act, Texas state law claims for violations of the Texas law of the right of privacy and publicity, Texas law of unfair business practices and competition, and Texas and common law trademark laws, as well as common law causes of action for violation of her right privacy, right of publicity, unjust enrichment, misappropriation, and unfair competition and trade practices.

         Puccino's has moved to dismiss plaintiff's claim under Federal Rule 12(b)(1), for lack of jurisdiction, and Federal Rule 12(b)(6), for failure to state a claim. Plaintiff opposes the motions.

         DISCUSSION

         Legal Standards

         "Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). “Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Id. In a 12(b)(1) motion, the party asserting jurisdiction bears the burden of proof that jurisdiction does in fact exists. Id.

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. "To survive a Rule 12(b)(6) motion to dismiss, 'enough facts to state a claim for relief that is plausible on its face' must be pleaded." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. v. Twombly, 550 U.S. 544 (2007). A claim is plausible on its face when the plaintiff pleads facts from which the court can “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. 544, 555 (citations omitted). The court “must accept all well-pleaded facts as true and view ...


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