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Somerson v. World Wrestling Entertainment, Inc.

United States District Court, N.D. Georgia

March 7, 2013


Page 1361

For Douglas Duane Somerson, Plaintiff: Edward Mark Gilgor, Edward Gilgor, LLC, Atlanta, GA.

For Vincent K. McMahon, Linda E. McMahon, 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.


Page 1362


Marvin H. Shoob, Senior United States District Judge.

This case is before the Court on defendant's second motion to dismiss. For the reasons set forth below, the Court grants defendant's motion.


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, alleged that defendants had 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. After the parties' filing of supplement briefs on the issue of jurisdiction, the Court concluded that it had diversity jurisdiction. See 28 U.S.C. § 1332(a).

Next, WWE and the McMahon defendants each filed motions to dismiss. In an Order dated August 23, 2012, the Court granted the McMahon's motion to dismiss and dismissed without prejudice plaintiff's claims against the McMahon defendants for lack of personal jurisdiction and insufficient service of process.

As for WWE's motion to dismiss, the Court noted that the parties focused on plaintiff's claims with regard to DVDs and video recordings of plaintiff's wrestling activities. First, the Court found that plaintiff was a public figure, and therefore, the Court addressed plaintiff's claims for a violation of a right to publicity and an invasion of privacy together referring to them as one claim for a violation of a right to publicity. Next, the Court determined that claims based on video recordings of plaintiff's wrestling performances were preempted under the Copyright Act because plaintiff's rights that were at issue fell within the subject matter of copyright and were equivalent to the exclusive rights of section 106 under the Copyright Act. Therefore, the Court dismissed plaintiff's claims for invasion of privacy and violation of a right to publicity as those claims related to DVDs and video recordings.

Next, the Court dismissed plaintiff's claim for the unauthorized use of intellectual property because it did not meet the standards of Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court also dismissed plaintiff's unjust enrichment claim because he asserted it as a separate tort and not as an alternative theory of recovery for a failed contract. In addition, the Court dismissed plaintiff's claim under GUDTPA because plaintiff could not recover money damages under GUDTPA and the claim did not meet the standards of Iqbal and Twombly.

Finally, the Court explained that although the parties had focused on DVDs and video recordings, plaintiff's claims as pled in his complaint were for WWE using his name and likeness in releasing not only

Page 1363

DVDs but also " 'books, dolls, and other commercial products.' Compl. ¶ 19." Order, at 31. WWE requested that plaintiff be required to provide a more definite statement pursuant to Fed.R.Civ.P. 12(e) specifying exactly what products he contends contain his name and likeness. The Court granted WWE's request. The Court directed plaintiff to file an amended complaint containing a more definite statement specifying the other merchandise he claims contains his name and likeness to support his invasion of privacy and violation of a right of publicity claims. The Court also pointed out that after its rulings that plaintiff could not sustain the claims of unjust enrichment, violation of GUDTPA, and unauthorized use of intellectual property, the only viable claims to which the other merchandise might apply were plaintiff's claims for invasion of privacy and a violation of a right to publicity.

In accordance with the Court's Order, plaintiff filed an amended complaint against only defendant WWE. Defendant has now moved to dismiss plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted.

Legal Standard

Under both Twombly and Iqbal, the Court is required to accept well-pleaded facts, not legal conclusions, as true when considering a motion to dismiss. Iqbal, 129 S.Ct. at 1949-50; Twombly, 550 U.S. at 555. " 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 omitted). Instead, the complaint must set forth factual allegations " plausibly suggesting (not merely consistent with)" a violation of the law. Id. at 557.

Accordingly, " [t]o 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.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). The Iqbal court explained as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

129 S.Ct. at 1949 (internal quotes and citations omitted).

" Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citation omitted). " But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' -- 'that the pleader is entitled to relief.'" Id. (quoting Fed.R.Civ.P. 8(a)(2)). In further clarifying the Twombly standard, the Supreme Court has adopted a two-pronged approach to evaluating motions to dismiss: (1) eliminate any allegations in the complaint that are merely legal conclusions, and (2) where there are well-pleaded factual allegations, " assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief." Iqbal, 129 S.Ct. at ...

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