United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.
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.
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.
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"
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:
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.
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
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.
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 ...