United States District Court, N.D. Georgia
Decided August 23, 2012
[Copyrighted Material Omitted]
For Douglas Duane Somerson, Plaintiff: Edward Mark Gilgor, Edward Gilgor, LLC, Atlanta, GA.
For Vincent K. McMahon, Linda E. McMahon, Wrestling Entertainment, Inc., Defendants: Cheralynn M. Gregoire, Otto F. Feil , III, Taylor, Feil, Harper, Lumsden & Hess, P.C., Atlanta, GA.
For World Wrestling Entertainment, Inc., Defendant: Otto F. Feil , III, Taylor, Feil, Harper, Lumsden & Hess, P.C., Atlanta, GA.
Marvin H. Shoob, Senior United States District Judge.
This case is before the Court on defendants' motions to dismiss. The Court's rulings and conclusions are set forth below.
On November 28, 2011, plaintiff Douglas Duane Somerson filed a complaint against World Wrestling Entertainment, Inc. (" WWE" ), Vincent McMahon, and his wife Linda McMahon (" the McMahon defendants" ), in the Superior Court of Fulton County, Georgia. Plaintiff alleged the following claims against defendants: (1) invasion of privacy; (2) unauthorized use of intellectual property; (3) unjust enrichment; (4) violation of the Georgia Uniform Deceptive Trade Practices Act (" GUDTPA" ), O.C.G.A. § 10-1-372; (5) violation of right of publicity; and (6) negligent supervision. In sum, plaintiff, a professional wrestler, alleges that defendants have used his name and likeness in certain merchandise without paying plaintiff any royalties and without his consent or authorization.
On January 5, 2012, defendants removed this action to this Court on the basis of federal question jurisdiction. Defendants asserted in their notice of removal that plaintiff's claims were completely preempted by federal copyright law and therefore arose under federal law for purposes of federal question jurisdiction. On February 1, 2012, the McMahon defendants and WWE each filed a motion to dismiss plaintiff's claims.
On June 26, 2012, the Court issued an Order inquiring sua sponte whether it had subject matter jurisdiction in this case and directed the parties to file supplemental briefs on the issue. The parties have now done so. Plaintiff states in his response to the Court's Order that he is seeking at least $75,000 in damages, and therefore, agrees with defendants' assertion that diversity jurisdiction is supported by his claim. The Court has already found that there is complete diversity among the parties. Accordingly, based on plaintiff's admission, the Court finds that it has diversity jurisdiction. See 28 U.S.C. § 1332(a). The Court now addresses defendants' motions to dismiss.
I. McMahon Defendants' Motion to Dismiss
The McMahon defendants move to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(2), (4), and (6), due to a lack
of personal jurisdiction, insufficient process, and failure to state a claim upon which relief could be granted. The Court addresses personal jurisdiction and insufficient process before reaching defendants' arguments for dismissal for failure to state a claim because a " defendant that is not subject to the jurisdiction of the court cannot be bound by its rulings." See Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 940 (11th Cir. 1997).
The McMahon defendants argue that plaintiff has failed to plead sufficient facts in the complaint to establish the Court's personal jurisdiction over them. The McMahon defendants point out that plaintiff has alleged in the complaint that they are both domiciled in Connecticut. The McMahon defendants contend that the complaint fails to specify the particular section of Georgia's long arm statue that is applicable or make any factual allegations to support jurisdiction. The McMahon defendants assert that it appears to them plaintiff intends to allege jurisdiction under O.C.G.A. § 9-10-91(1) and/or (3). Under either § 9-10-91(1) or (3), defendants argue that plaintiff fails to allege (1) a single contact with Georgia by either Mr. or Mrs. McMahon, (2) any business transacted in the state by the McMahon defendants in their individual capacities; or (3) allegations that would allow the Court to determine that either McMahon as an individual regularly does or solicits business, or engages in any other persistent course of conduct in Georgia. Instead, the McMahon defendants contend that plaintiff relies on conclusory statements that do nothing more than recite the statutory language. Additionally, the McMahon defendants argue that even if WWE transacts business in Georgia, either McMahon defendant's status as a current or former corporate executive does not automatically confer jurisdiction over them.
Plaintiff bears the burden of establishing a prima facie case of jurisdiction over a non-resident defendant. See Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988). Plaintiff establishes such a case by presenting sufficient evidence to defeat a motion for a directed verdict. Id.
Plaintiff did not respond to the McMahon defendants' arguments that the Court lacks personal jurisdiction over them. Therefore, plaintiff has failed to establish a prima facie case of jurisdiction. The Court agrees with the McMahon defendants' arguments and reasoning that personal jurisdiction over them is lacking in this case.
The McMahon defendants also move to dismiss plaintiff's complaint for insufficient process pursuant to Fed.R.Civ.P. 12(b)(4). They contend that although WWE was served through its registered agent in Georgia, neither of the McMahon defendants has been served personally with the summons or complaint. Therefore, defendants argue that because plaintiff failed to serve them individually, the Court lacks personal jurisdiction over them and dismissal is warranted. 
The Court is required to dismiss a complaint or order that service be made within a specified time when a defendant is not served within 120 days after the complaint is filed. Fed.R.Civ.P. 4(m). If a plaintiff shows good cause for the failure to serve, the Court must extend the time for service for an appropriate period. Id.
Plaintiff did not respond to the McMahon defendants' arguments regarding insufficient
process. Plaintiff has not shown good cause for the failure to serve the McMahon defendants. Additionally, plaintiff has not filed proof of service with regard to the McMahon defendants. See Fed.R.Civ.P. 4(l)(1).
Therefore, the Court dismisses this action against the McMahon defendants for lack of personal jurisdiction and insufficient service of process. The McMahon defendants have requested that dismissal be with prejudice. However, a dismissal for lack of personal jurisdiction or insufficient service of process is without prejudice. See Fed.R.Civ.P. 4(m); Jackson v. Warden, FCC Coleman-USP, 259 Fed. App'x 181, 182-83 (11th Cir. 2007) (finding that the case should have been dismissed without prejudice for failure to serve, and therefore, it was improper for the court to have reached the merits and issued dismissal with prejudice); Republic of Panama, 119 F.3d at 940. Accordingly, the Court grants the McMahon defendants' motion to dismiss and dismisses this case against them without prejudice, including plaintiff's claim for negligent supervision, which is alleged only against the McMahon defendants and not WWE.
II. WWE's Motion to Dismiss
WWE moves to dismiss plaintiff's claims with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Plaintiff's claims against WWE are (1) invasion of privacy; (2) unauthorized use of intellectual property; (3) unjust enrichment; (4) violation of GUDTPA, O.C.G.A. § 10-1-372; and (5) violation of a right of publicity.
A. Legal Standard
Under both Twombly and Ashcroft, the Court is required to accept well-pleaded facts, not legal conclusions, as true when considering a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotations and citations ...