Johnson v. The Florida State Golf Association, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARK JOHNSON,

Plaintiff,

v. Case No. 8:19-cv-3202-T-60AEP

THE FLORIDA STATE GOLF

ASSOCIATION, INC., et al.,

Defendants.

/

ORDER DENYING “MOTION TO DISMISS AND

FOR AN AWARD FOR OF ATTORNEYS FEES;” and

SUA SPONTE ORDER DISMISSING FICTITIOUS PARTIES

This matter is before the Court on Defendant Florida State Golf Association,

Inc.’s “Motion to Dismiss and for an Award of Attorneys Fees,” filed on February 3,

2020. (Doc. 8). Plaintiff responded in opposition on February 17, 2020. (Doc. 9).

Upon review of the motion, response, court file, and record, the Court finds as

follows:

Background

Plaintiff Mark Johnson, a professional photographer, holds a copyright in an

original photograph of a golfer trying to hit a ball out of a water hazard (the

“Image”). Defendant Florida State Golf Association, Inc. (“FSGA”) – a non-profit

organization dedicated to promoting, protecting, and preserving the game of golf –

used the Image on its website without a license. Plaintiff discovered FSGA’s use of

the Image and subsequently filed a single count complaint for copyright

infringement against FSGA and ten unnamed Does (the “Doe Defendants”).

Legal Analysis

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a

short and plain statement of the claim showing the [plaintiff] is entitled to

relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual

allegations,” it does require “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, factual

allegations must be sufficient “to state a claim to relief that is plausible on its

face.” Id. at 570.

When deciding a Rule 12(b)(6) motion, review is generally limited to the four

corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233

(M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a

court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the

[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the

complaint’s legal sufficiency, and is not a procedure for resolving factual questions

or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic

Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. 2009)

(Lazzara, J.).

Analysis

Motion to Dismiss and for an Award of Attorney’s Fees

FSGA contends that Plaintiff’s complaint should be dismissed with prejudice

because its use of the Image constitutes fair use. However, the fair use doctrine is

an affirmative defense. Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th

Cir. 2010). “Generally, the existence of an affirmative defense will not support a

motion to dismiss.” Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th

Cir. 1984).

In the context of fair use, it is generally inappropriate to determine the

merits of such a claim at this stage of the proceedings “[u]nless the facts necessary

to make the determination are evident on the face of the complaint.” Land’s End at

Sunset Beach Cmty. Assoc., Inc. v. Land’s End Acquisition Corp., No. 8:16-cv-828-

17JSS, 2016 WL 9526680, at *8 (M.D. Fla. Nov. 7, 2016) (citing Kelly-Brown v.

Winfrey, 717 F.3d 295, 308 (2d Cir. 2013)). As such, courts asked to resolve this

kind of question at this stage of the proceedings will typically deny a motion to

dismiss based on fair use. See, e.g., 3Lions Publ’g, Inc. v. Interactive Media Corp.,

389 F. Supp. 3d 1031, 1042 (M.D. Fla. 2019) (denying motion to dismiss based on

fair use after concluding that fair use defense was not ripe before the summary

judgment stage); Katz v. Chevaldina, 900 F. Supp. 2d 1314, 1316-17 (S.D. Fla. 2012)

(same).

Here, the necessary facts are not evident on the face of the complaint, and the

record is not sufficiently developed at this time, to determine whether FSGA was

engaging in fair use of the copyrighted image. Therefore, FSGA’s “Motion to

Dismiss and for an Award of Attorneys Fees” is denied. However, FSGA is not

precluded from raising its fair use defense at the summary judgment stage of these

proceedings. See 3Lions Publ’g, Inc. 389 F. Supp. 3d at 1042.

Fictitious Parties

“[F]ictitious-party pleading is generally not permitted in federal court” unless

“the plaintiff's description of the defendant is so specific as to be at the very worst,

surplusage.” Kabbaj v. John Does 1-10, 600 F. App’x 638, 641 (11th Cir. 2015)

(quoting Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010)).

In this case, Plaintiff fails to provide any detail whatsoever about the identity

of the Does, their relationship to FSGA, or their specific involvement as it relates to

copyright infringement. Plaintiff only alleges that the Doe Defendants were

“responsible in some manner for the occurrences herein alleged, and that Plaintiff’s

damages . . . were proximately caused by the conduct of said [Doe] Defendants.”

(Doc. 1 at ¶ 7). These vague allegations “do not fit the limited exception to the

general prohibition against fictitious-party pleading in federal court.” See Uppal v.

Wells Fargo Bank, NA, No. 8:19-CV-1334-T-02JSS, 2019 WL 5887182, at *6 (M.D.

Fla. Nov. 12, 2019), appeal dismissed sub nom. Uppal v. Wells Fargo Fin., No. 19-

14953-H, 2020 WL 1250494 (11th Cir. Mar. 10, 2020) (sua sponte dismissing John

Doe Defendants based on similarly vague allegations). All fictitious parties are

therefore dismissed from this action.

It is therefore

ORDERED, ADJUDGED, and DECREED:

1. Defendant Florida State Golf Association, Inc.’s “Motion to Dismiss and

for an Award of Attorneys Fees” (Doc. 8) is DENIED.

2. EFSGA is directed to file an answer on or before June 18, 2020.

3. All fictitious parties are dismissed as Defendants in this action.

DONE and ORDERED in Chambers in Tampa, Florida, this 28th day of

May, 2020.

“TOM BARBER

UNITED STATES DISTRICT JUDGE

Page 5 of 5