Filing # 78053854 E­Filed 09/18/2018 01:12:02 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
DANIEL RIGMAIDEN,
Plaintiff,

Case No.: 2018-015032-CA13

v.
NBCUNIVERSAL MEDIA, LLC,
and KURTIS PRODUCTIONS, LTD.,
Defendants.
_______________________________________/
DEFENDANTS NBCUNIVERSAL AND KURTIS PRODUCTIONS’
MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
Defendants, NBCUniversal Media, LLC and Kurtis Productions, Ltd. (“Defendants”),
move to dismiss the First Amended Complaint (“FAC” or “complaint”), pursuant to Fla. R. Civ.
P. 1.140(b)(6) and other applicable rules. In support, Defendants state:
Introduction and Background
1.

At its core, this is a defamation action brought by Daniel Rigmaiden, a convicted

felon who spent many years behind bars for committing multiple federal felonies. His case arises
from an episode of the documentary seriesAmerican Greed
, which describes his criminal activities
and subsequent prosecution. Careful scrutiny of his complaint, however, reveals that Rigmaiden
simply is trying to escape his past, which led to confinement for nearly six years, a guilty plea, and
ultimately a sentence for time served and probation.

In this regard, Rigmaiden seeks an

unconstitutional prior restraint, along with impermissible claims for unfair trade practices and
misappropriation. His complaint accordingly must be dismissed.
2.

In the complaint, Rigmaiden admits that he pled guilty to federal charges in Arizona

and was sentenced to 68 months of time-served. ( Seeid. FAC ¶¶ 17-18) But he now attacks

 Defendants for having produced and aired a segment about his documented criminal past because,
according to him, it contains certain factual inaccuracies that have tarnished his reputation. The
first seventeen causes of action in Rigmaiden’s 72-page pleading are all based on those alleged
inaccuracies and are grounded in defamation. ( SeeFAC ¶¶ 80-261) The first problem he faces,
however, is that by seeking an injunction on those claims, he is requesting that the Court enter an
unconstitutional prior restraint.
3.

In addition, Rigmaiden has thrown into his pleading a facially defective class action

under Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”). ( SeeFAC ¶¶ 262-270)
Not only do his underlying factual allegations undermine and defeat that claim as a matter of law,
but the claim is improperly based on the very same alleged conduct that forms the basis for his
string of defamation claims -- namely, that “the Segment contains false facts about [him]” and is
allegedly a “fabricated story” about him. ( Id. ¶¶ 267-268) Such a claim cannot legally proceed
under Florida’s longstanding single-action rule.
4.

Rigmaiden’s final claim (entitled “Violation of Florida Common Law Right of

Publicity and Rights under Fla. Stat. 540.08”) is likewise flawed. In it, he essentially blames
Defendants for using his name or likeness to advertise American Greed
. But this type of situation
is not even covered, much less prohibited, by the statute that he cites.
5.

Before discussing the specific grounds for dismissal, a few words should be said

about Rigmaiden’s allegation in ¶ 10, claiming that because he is a

pro selitigant, his pleading

“however inartfully pleaded, must be liberally construed and held to less stringent standards than
formal pleadings drafted by lawyers.” This is misleading. The case upon which he relies --Haines
v. Kerner
, 404 U.S. 519 (1972) -- involved claims brought by a prisoner for damages arising from
his solitary confinement. That is not even remotely similar to Rigmaiden’s defamation case here.

2

 But more importantly, Florida case law addressing Haineshas made it clear that Hainesmerely
stands for the proposition that pro selitigants are afforded “leniency in technical matters.”

See,

e.g., Barrett v. City of Margate
, 743 So. 2d 1160, 1162 (Fla. 4th DCA 1999) (“pro se litigants are
not immune from the rules of procedure”). The deficiencies in Rigmaiden’s complaint, however,
run deeper and concern the substance of the claims he asserts. Rigmaiden has not and cannot cite
to any authority that would afford him any leniency as to the substance of his claims. As Barrett
explains, any “complaint, whether filed by an attorney or

pro selitigant, must set forth factual

assertions that can be supported by evidence which gives rise to legal liability.”

Id. at 1162–63.

This is where his complaint falls flat and is subject to dismissal.
Grounds for Dismissal
I
Dismissal is Required Because
the Complaint Seeks an Impermissible Prior Restraint
(All Causes of Action)
6.

As shown by the allegations of his First Amended Complaint -- as well as its very

title that leads off with injunctive relief 1 -- Rigmaiden’s primary objective in filing this lawsuit is
to prevent any further broadcast or use of the American Greed
segment that features him. This is
underscored by the very relief that he requests in ¶ 282 as to his 17 defamation-based claims -namely, that the Court enter a preliminary and permanent injunction directing Defendants to “cease
any and all activity that would cause the distributing, disseminating, publishing, displaying,
posting for view or access on or through television, the Internet, or any other matter or media

1

The full title is “First Amended Complaint for Injunctive, Declaratory and Other

Relief.”
3

 outlet, broadcasting, transferring, licensing, selling, offering to sell or license” theAmerican Greed
segment at issue. (See also
¶¶ 283, 287 -- requesting injunction on statutory claims)
7.

This effort by Rigmaiden to use this lawsuit as a tool to muzzle Defendants is

legally impermissible at its very core because it seeks a prior restraint on speech, which is barred
by the First Amendment of the United States Constitution. Consistent with that notion, injunctive
relief is not available in Florida to prohibit the making of allegedly defamatory statements. On
these points, the Court should be aware of the following:
➢

As the United States Supreme Court has made clear time and time again,

“prior restraints on speech and publication are the most serious and the least tolerable infringement
on First Amendment rights.” Neb. Press Ass’n v. Stuart
, 427 U.S. 539, 559 (1976). “Any prior
restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional
validity.” Org. for a Better Austin v. ,Keefe
402 U.S. 415, 419 (1971) (citations omitted). In fact,
the Supreme Court “has neverupheld a prior restraint, even faced with the competing interest of
national security or the Sixth Amendment right to a fair trial.” Procter & Gamble Co. v. Bankers
, 78 F.3d 219, 227 (6th Cir. 1996) (emphasis added). The Supreme Court has thus found,
Trust Co.
for example, that the First Amendment right to publish must prevail even under compelling
circumstances such as confidentiality claims of rape victims, Fla. Star v. B.J.F.
, 491 U.S. 524, 532
(1989), and minors charged with murder, Okla. Publ’g Co. v. Dist. Court in and for Okla.
, Cty.
430 U.S. 308, 311 (1977).
➢

Consistent with that precedent, Florida courts have likewise acknowledged

that “[p]rior restraints on speech and publication are the most serious and least tolerable
infringement on First Amendment rights,” and that “[a]s such, prior restraints are presumed
unconstitutional” and “only in ‘exceptional
cases,’ will the courts consider censorship of

4

 publication acceptable.” Gagliardo v. Branam Children
, 32 So. 3d 673, 674 (Fla. 3d DCA 2010)
(emphasis added) (citation omitted); see also Post-Newsweek Stations Orlando, Inc. v.
, Guetzloe
968 So. 2d 608, 610 (Fla. 5th DCA 2007) (same).
➢

To put it mildly, this case does not even remotely come close to the level of

an “exceptional” case worthy of overcoming the presumption of unconstitutionality. Indeed, it has
been filed by a convicted felon who admits to pleading guilty to federal crimes and spending nearly
six years behind bars, yet he now blames Defendants rather than himself for damaging his
reputation, and seeks to restrain them from publishing their report about him.
➢

Even if the requested injunctive relief did not constitute an unconstitutional

priorrestraint (which it clearly does), Rigmaiden plainly is not, as a matter of law, entitled to
injunctive relief on any of his claims. As the courts have recognized, an injunction cannot be
issued to prevent the initial or continuing publication of an alleged defamation. As the Supreme
Court has explained, “‘imperfect though it is, an action for damages is the only hope for vindication
or redress the law gives to a man whose reputation has been falsely dishonored.’”

Milkovich v.

, 497 U.S. 1, 23 (1990) (quoting Rosenblatt v. Baer
, 383 U.S. 75, 93 (1966)
Lorain Journal Co.
(Stewart, J., concurring)). Thus, all counts of the First Amended Complaint should be dismissed
as they improperly seek injunctive relief.
➢

Courts in this state have routinely recognized that injunctive relief is

unavailable as a remedy in defamation cases. SeeSantilli v. Van Erp
, No. 8:17-cv-1797-T33MAP, 2018 WL 2172554, at *3 (M.D. Fla. Apr. 20, 2018), adopted
, 2018 WL 2152095 (M.D.
Fla. May 10, 2018) (“[u]nder Florida law, ‘there is a well-settled rule prohibiting injunctive relief
in defamation cases’”); Chevaldina v. R.K./FL Mgmt.,, 133
Inc.So. 3d 1086, 1090 (Fla. 3d DCA
2014) (“[i]njunctive relief is not available to prohibit the making of defamatory or libelous

5

 statements”); see also
Vrasic v. Leibel
, 106 So. 3d 485, 486 (Fla. 4th DCA 2013) (“Florida’s courts
have long held that temporary injunctive relief is not available to prohibit the making of
defamatory or libelous statements”).
8.

Because the very underpinning of this lawsuit is a demand that this Court grant

relief that is plainly unconstitutional and prohibited by Florida law, the First Amended Complaint
must be dismissed.
II
Florida’s Single-Action Rule Bars
All Non-Defamation Theories in
Amended Complaint as a Matter of Law
(Eighteenth & Nineteenth Causes of Action)
9.

It is well-settled that in a defamation action, the plaintiff is barred from pursuing

additional claims based on the same broadcast/publication. This is known as the single-action rule,
and it has been in effect for decades in Florida. See Fridovich v. Fridovich
, 598 So. 2d 65, 69 (Fla.
1992) (dismissing claim based on alleged defamation because “plaintiff is not permitted to make
an end-run around a successfully invoked defamation privilege by simply renaming the cause of
action and repleading the same facts.”); Callaway Land & Cattle Co., Inc. v. Banyan Lakes C.
Corp., 831 So. 2d 204, 208-09 (Fla. 4th DCA 2002) (rejecting tortious interference and abuse of
process claims under the “single action rule”); Seminole Tribe of Fla. v. Times Pub’g ,Co,
780 Inc.
So. 2d 310, 318 (Fla. 4th DCA 2001) (dismissing interference claim because “this is a defamation
case in the clothing of a different tort”); Orlando Sports Stadium, Inc. v. Sentinel, 316
StarSo.
Co.
2d 607, 609 (Fla. 4th DCA 1975) (“a single wrongful act gives rise to a single cause of action, and
. . . the various injuries resulting from it are merely items of damage arising from the same wrong”).
10.

Likewise, federal courts in Florida have routinely applied the single-action rule.

, Ward v. Triple Canopy, Inc.
, No. 8:17-cv-802-T-24 MAP, 2017 WL 3149431, at *4
See, e.g.
6

 (M.D. Fla. July 25, 2017) (observing that “Florida’s single action rule prohibits defamation claims
from being re-cast as additional, separate torts”); Klayman v. Judicial Watch,, 22
Inc.
F. Supp. 3d
1240, 1256 (S.D. Fla. 2014), aff'd, No. 14-13855 (11th Cir. Feb. 17, 2015) (“a plaintiff may not
proceed on multiple counts for what is essentially the same defamatory publication or event”); cf.
Pierson v. Orlando Reg'l Healthcare Sys.,
, No. 6:08–cv–466–Orl–28GJK,
Inc.
2010 WL 1408391,
at *22 (M.D. Fla. Apr. 6, 2010), aff'd, 451 F. App’x 862 (11th Cir. 2012) (“[a]ttempts by plaintiffs
in other cases to pursue claims sounding in defamation by calling them by the name of another tort
have been repeatedly rejected by courts in this state”); Maverick Boat Co. v. Am. Marine Holdings
Inc., Nos. 02–14102–CIV, 02–14283–CIV., 2004 WL 1093035 (S.D. Fla. Feb. 10, 2004) (where
defamation claim failed, claims for product disparagement, unfair competition, and unfair trade
practices were similarly barred).
11.

In Fridovich
, the Florida Supreme Court dismissed a tag-along tort claim in a

defamation action, holding that “a plaintiff cannot transform a defamation action into a claim for
intentional infliction of emotional distress simply by characterizing the alleged defamatory
statements as ‘outrageous.’” Fridovich
, 598 So. 2d at 69-70. Though that arose in the context of
an emotional-distress claim, the Court’s holding demonstrated the broader principle that a plaintiff
is barred from pursuing any other claim that is merely based on the same core facts as a defamation
claim. Id. As Fridovichand its progeny make clear, the rationale for this rule is that a plaintiff
cannot be allowed to make an “end-run” around privileges and defenses applicable to defamation
claims merely by recharacterizing his or her claim under another label. Id.
12.

In his eighteenth and nineteenth causes of action (under FDUTPA and § 540.08

respectively), Rigmaiden is attempting to do exactly what the above cases prohibit --

i.e., base

alternate claims on the same facts as defamation. Indeed, both of these statutory claims explicitly

7

 incorporate every single allegation
contained within his section entitled “Facts giving rise to
defamation, defamation per se, defamation by implication, and defamation per se by implication.”
(SeeFAC ¶¶ 262 & 271; see also
¶¶ 30-65)

Moreover, his FDUTPA claim itself includes

additional allegations that “the Segment contains false facts about [him]” and that it is a “fabricated
story” about him. ( Id. ¶¶ 267-268) As such, these are just defamation claims with a different
label and must therefore be dismissed.
13.

Even setting aside the single-action rule, the eighteenth and nineteenth causes of

action fail as a matter of law for separate and independent reasons. These are discussed below.
III
Claim Under FDUTPA Fails to State
Valid Cause of Action and Must Be Dismissed
(Eighteenth Cause of Action)
14.

The FDUTPA Claim
. In his eighteenth cause of action, Rigmaiden purports to

state a claim under FDUTPA (Chapter 501.201, Florida Statutes,

et seq.
). In it, he pursues an

individual claim as well a claim on behalf of “all Florida consumers who purchased or otherwise
paid to view or download the American Greed
episode containing the Segment” about him. The
basis of his FDUTPA theory is that Defendants allegedly advertised

2

the American Greed
series

to the public as “depicting true stories based on in-depth reporting” (¶¶ 66, 263); that this
advertisement is false because the episode at issue contains “false facts about [him] and his tax
refund fraud scheme” (¶¶ 70, 264); that as such, all consumers including himself who purchased

2

Rigmaiden also claims that “true-crime stories” is an “understood premise” of the
series. (¶¶ 69, 263) But such a nebulous assertion would not bring his claim within the scope of
FDUTPA. By its very terms, FDUTPA requires that the defendant’s deceptive conduct be an “act”
or “practice.” See§§ 501.202(2) & 501.204(1). While an alleged false advertisement may suffice,
an unspecified and tacit “premise” would fall woefully short.
8

 this episode received a “falsely advertised” product (¶¶ 70, 264); and that all such consumers
including himself suffered an actual loss in the amount of their respective purchases (¶ 265).
15.

Fatal Flaws in Claim.
As explained fully in the prior section (see§ II supra
), this

FDUTPA claim cannot go forward based on the single-action rule because it is based on the very
same accusations of falsity as his defamation claims. Rigmaiden does not allege, as the basis for
his FDUTPA claim, that the advertisement for the episode is false because it misrepresents the
topic of the episode, or its duration, or who the episode’s narrator is, or otherwise makes a
statement about the episode as a product
. Rather, Rigmaiden’s FDUTPA claim rests entirely on
his allegation that the content of the episode itself is false, and therefore the advertisement is false
too. This is simply a defamation claim in other clothes, and it should be dismissed on that basis.
16.

Moreover, Rigmaiden is improperly attempting to use the injunctive relief

available under FDUTPA as an end-run around the well-established prohibition against such relief
in defamation actions and to skirt the protections of the First Amendment.

;
SeeSection I, supra

see also Gorran v. Atkins Nutritionals,
, 464 Inc.
F. Supp. 2d 315, 329 (S.D.N.Y. 2006) (dismissing
FDUTPA claim where defendants’ “ideas are protected by the First Amendment”).
17.

While each of these points constitutes a sufficient basis upon which to dismiss the

FDUTPA claim in its entirety, there are a host of other legal deficiencies requiring dismissal both
as to his individual claim and his claim on behalf of the putative class. Each of these points is
separately discussed.
(a)

. It is well settled that both causation
Individual Claim Fails

andactual

damages from a FDUTPA violation are required elements in an action brought under this statute.
See, e.g.
, Kai Motors Am. Corp. v. Butler
, 985 So. 2d 1133, 1140 (Fla. 3d DCA 2008)
(“FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and

9

 (3) actual damages”). As to Rigmaiden’s individual claim, however, those two elements are not
only missing but are directly negated
by the allegations pled. More specifically, in ¶ 71 of his
pleading, Rigmaiden alleges that on August 4, 2018
he paid $2.99 to purchase the “falsely
advertised” episode from Amazon and that this amount constitutes his actual loss from Defendants’
alleged FDUTPA violation ( i.e., the allegedly false advertisement). But based on that purchase
date alone -- which was just a few weeks ago -- it is clear that his purchase occurred during this
litigation. That is significant because in his initial complaint that he filed three months earlier
in
May of 2018, Rigmaiden was already claiming that the segment about him was substantially false.
He even cited to specific time-stamped excerpts within the episode that he claimed were false. As
such, his laterpurchase of the episode from Amazon in August could not possibly have been
“caused” by the alleged false advertisement about “true stories” upon which this claim is based,

3

nor could the $2.99 that he paid fall into the category of an “actual damage” incurred a result of
being duped by that allegedly false advertisement.

4

Since the elements of causation and actual

damages are negated by the very allegations pled, Rigmaiden has no valid individual FDUTPA
claim as a matter of law. It must therefore be dismissed. See, e.g.
, Molina v. Aurora Loan Servs.,

3

This is bolstered by the fact that courts utilize an objective
standard in this context.
Such a standard, by its very nature, looks to what a reasonable person in the plaintiff’s position
would do. See, e.g.
, Grogan v. Heritage NH, LLC
, 126 So. 3d 262, 264 (Fla. 3d DCA 2010)
(“objectively reasonable” means “judged from the perspective of a reasonable person in the
plaintiff’s position”). As applied here, no reasonable person -- who had already filed a lawsuit
declaring that the segment about him is false and citing specific time-stamped excerpts in support
-- would laterbe misled into purchasing that same episode just because an advertisement says that
it is “true.” To do so would make no logical sense at all.
4

Given the admitted timing of Rigmaiden’s purchase of the episode from Amazon - which was just two weeks before he filed his amended complaint -- it is obvious that his purchase
of the episode was simply to manufacture a new claim for his amended 72-page pleading. In other
words, this was a litigation stunt. It was nota purchase by some unsuspecting member of the
public who was legitimately duped by false advertising. As such, the consumer-protection and
unfair-competition policies that underpin FDUTPA do not apply here. See§ 501.202, Fla. Stat.
10

 LLC, 635 F. App’x 618, 627 (11th Cir. 2015) (affirming dismissal of FDUTPA claim for lack of
sufficient factual allegations to support causation where there was no “but for” allegation);Taviere
v. Precision Motor Cars, ,Inc.
No. 8:09-cv-467-T-TBM, 2010 WL 557347, at *5 (M.D. Fla. Feb.
12, 2010) (dismissing FDUTPA claim with prejudice because complaint contained “no allegations
demonstrating causation”); Kais v. Mansiana Ocean Residences,
, No.
LLC
08–21492–CIV, 2009
WL 825763, at *2 (S.D. Fla. Mar. 26, 2009) (dismissing FDUTPA claim for failure to allege how
deceptive act caused damage to plaintiff or caused him “to act differently in any way”);
see
generally Prunty v. Sibelius
, 2014 WL 6676951, at *4 (M.D. Fla. Nov. 20, 2014) (in FDUTPA
claims, “[c]ausation must be direct, rather than remote or speculative”), adopted as modified on
2014 WL 7066430 (M.D. Fla. Dec. 12, 2014).
other grounds,
(b)

No Valid Basis for Class Treatment.
If this Court agrees that Rigmaiden’s

individual FDUTPA claim fails, it necessarily follows that he cannot serve as a class representative
nor pursue any class action. But even if this Court were to conclude that Rigmaiden’s individual
FDUTPA claim may go forward, the class portion of the claim still fails. The simple reason is that
many of the threshold requirements for a class action are directly negated
by the very allegations
set forth in the claim itself. SeeFla. R. Civ. P. 1.220. Four of the threshold requirements are set
forth in subsection (a) of that rule as follows:
Before any claim or defense may be maintained on behalf of a class by one party
or more suing or being sued as the representative of all the members of a class, the
court shall first conclude that (1) the members of the class are so numerous that
separate joinder of each member is impracticable, (2) the claim or defense of the
representative party raises questions of law or fact common
to the questions of law
or fact raised by the claim or defense of each member of the class, (3) the claim or
defense of the representative party istypicalof the claim or defense of each member
of the class, and (4) the representative party can fairly and adequately protect and
represent
the interests of each member of the class.

11

 (Emphasis added). Plus, as to the damage portion of Rigmaiden’s claim, there are two additional
threshold requirements set forth in subsection (b)(3) -- namely, that the “questions of law or fact
common to the claim or defense of the representative party and the claim or defense of each
member of the class predominate
over any question of law or fact affecting only individual
members of the class” and that “class representation is superiorto other available methods for the
fair and efficient adjudication of the controversy.” Fla. R. Civ. P. 1.220(a)(3) (emphasis added).
Rigmaiden’s attempt to plead a class action fails at nearly every step -- any one of which requires
dismissal of the class allegations. For instance:
➢ No Commonality or Predominance
. The commonality and predominance
requirements in subsections (a)(2) and (b)(3) respectively are missing. First, as with his individual
claim, Rigmaiden has failed to allege that the loss incurred by anyclass member (i.e., payment for
the episode) was actually caused by the alleged FDUTPA violation here ( i.e., the allegedly false
advertisement). As such, he has not stated a valid FDUTPA cause of action as to
anyclass
member, and thus there are no issues -- common or otherwise -- to be resolved. Moreover,
causation and resulting damages in this particular context would need to be decided on an
individual basis rather than a class-wide basis. Indeed, there are any number of individualized
inquiries on such issues, not the least of which is that there may well be class members who
purchased this episode solely to see parts that had nothing to do with Rigmaiden at all. The
presence of individualized inquiries automatically defeats a class action. See, e.g.
, Volkswagen of
, 909 So. 2d 923, 924 (Fla. 3d DCA 2005) (reversing class certification
Am., Inc. v. Sugarman
where “key element of causation mandates individual inquiry into each plaintiff's claim”);see also
Kia Motors, supra
, at 1141 (reversing class certification of FDUTPA claim and observing that
“where individual issues outnumber common issues, trial courts should be hesitant to certify class

12

 actions”); Miami Auto. Retail, Inc. v. Baldwin
, 97 So. 3d 846, 854 (Fla. 3d DCA 2012) (reversing
class certification of FDUTPA where individualized issues predominated over common issues).
➢ No Typicality
. The typicality requirement in subsection (a)(3) fails on its
face because the claim of Rigmaiden (who would be the putative class representative) is inherently
different than the claim of all other class members. As his own allegations highlight, he is thesole
subject of the segment that he is complaining about. The contents of the segment are not about
anyone else, much less about any other class member. As such, Rigmaiden’s self-interest in
pursuing this case necessarily differs from the interests of other class members, thereby defeating
typicality. In addition, it is obvious from his own allegations that he purchased the episode long
after he had already filed suit alleging its falsity (seen. 4 supra
), whereas the other class members
are alleged to have made the purchase based on the alleged advertisement about “true stories.” As
such, this highlights a material difference between his claim and those of his putative class
members, thereby negating typicality. See, e.g.
, Hutson v. Rexall Sundown,
, 837
So. 2d 1090,
Inc.
1093 (Fla. 4th DCA 2003) (typicality defeated as to FDUTPA claim based on false advertising
where some class members read label but others did not);State Farm Mut. Auto. Ins. Co. v.
, 822 So. 2d 516, 517 (Fla. 3d DCA 2002) (typicality defeated where “plaintiff was in a
Kendrick
totally different position than the putative class members she would represent”); cf. Miami Auto.,
97 So. 3d at 853-54 (even where claims of all class members including class representative involve
same legal interests, typicality is defeated if there are potential defenses to claim of class
representative that are unique).
. The adequacy requirement in
➢ No Adequacy of Protection/Representation
subsection (a)(4) is likewise missing. In fact, Rigmaiden’s own pleading underscores that he is
not equipped to pursue such complex litigation on behalf of others. As he readily acknowledges,

13

 he has retained no lawyer. Plus, his pleading contains no allegations that he has any prior class
action experience, that he has adequate available resources to handle the volume of work attendant
to class litigation, or that he has the financial wherewithal to absorb the cost thereof.

See, e.g.
,

Miami Auto.,
97 So. 3d at 854-55 (reversing class certification of FDUTPA where plaintiff failed
to show that she was capable of representing the classeven though she was represented by
counsel
). While Rigmaiden alleges that he may hire a lawyer at some point after the pleading
stage, he certainly needs to retain counselbeforehe starts representing a class -- not at some
unspecified time afterward. Indeed, given how flimsy his FDUTPA claim is, he may never find a
lawyer willing to pursue it as a class action.
. The superiority requirement in subsection (b)(3) is also
➢ No Superiority
missing. As the Third District has explained:
[C]lass treatment is not a superior method for resolving the issues in this FDUTPA
claim where the common facts do not predominate
, and individual plaintiffs may
bring their own suits, as FDUTPA provides attorney’s fees to a prevailing
plaintiff. See§ 501.2015(1), Fla. Stat. (2008).
, 97 So. 3d at 859 (emphasis added). That logic applies equally here where factual
Miami Auto.
determinations as to causation and resulting damages will necessarily be unique to each putative
class member, thereby requiring a series of mini-trials and defeating any notion that a class action
is the superior method of resolving this claim.
18.

For these reasons, the FDUTPA claim must be dismissed in its entirety.
IV
His Final Claim Must Also Be Dismissed
Because the Allegations Do Not Fall Within Scope of Such a Claim
(Nineteenth Cause of Action)

19.

In his final cause of action, Rigmaiden purports to plead a claim for common law

right of publicity, also known as commercial misappropriation. In Florida, that common law right
14

 has been codified in § 540.08, Florida Statutes.

Regardless of how such a claim may be

characterized in a complaint ( i.e., statutory or common law), the requirements are the same and
are specified in that statute.

5

See, e.g.
, Almeida v. Amazon.com,, 456
Inc.F.3d 1316, 1320 n.1

(11th Cir. 2006); Lanev. MRA Holdings, LLC
, 242 F. Supp. 2d 1205, 1215 (M.D. Fla. 2002);
Heath v. Playboy Enters.,
, 732
Inc.F. Supp. 1145, 1147-48 (S.D. Fla. 1990). To that end,
subsection (1) of § 540.08 provides that:
No person shall publish, print, display or otherwise publicly use for purposes of
trade or for any commercial or advertising purpose the name, portrait, photograph,
or other likeness of any natural person without the express written or oral consent
to such use …
20.

Rigmaiden alleges that Defendants violated this prohibition by including his name

or likeness in advertisements for American Greed
without his consent. In so arguing, however,
he completely overlooks a well-established rule of law -- namely, that relief is not available where
a person’s name or likeness has merely been used to advertise a product that involves the very
same person. SeeTyne v. Time Warner Entm’t. Co..
, 901LP
So. 2d 802, 807-08 (Fla. 2005)
(section 540.08 prevents use of person’s name or likeness to directly promote a product or service
because of the way the use associates the person’s name or personality “with something else”).
21.

As the case law reflects, statutory protection is available only if a person’s name or

likeness were used to advertise some unrelated
product, which is not the situation here. InFuentes

5

, 242 F. Supp. 2d at 1220 (“[u]nder Florida law, the elements of common law
See Lane
invasion of privacy–commercial misappropriation of likeness coincide with the elements of
unauthorized publication of name or likeness in violation of Fla. Stat. § 540.08”). As such,
common law misappropriation claims fail to the same extent as their statutory counterpart. See,
e.g., Almeida
, 456 F.3d at 1320 n.1 (noting district court holding that both statutory and common
law misappropriation claims “should be resolved on the same basis” and holding claims failed
because plaintiff could not show defendant used her name directly to promote a product or service);
, 721Inc.
F. Supp. 2d 1255, 1259-60 (S.D. Fla. 2010) (dismissing
Fuentes v. Mega Media Holdings,
common law and statutory misappropriation claims on same grounds).
15

 v. Mega Media Holdings,, Inc.
721 F. Supp. 2d 1255, 1258-59 (S.D. Fla. 2010), for example, an
author sued the producer of a television program, claiming its use of his name without his consent
in short video clips on YouTube that promoted its television show (which also included his name)
constituted a violation of § 540.08. The court ruled that this was not the type of scenario that
would fall within the scope of this statute. As the court pointed out, “[t]o maintain a cause of
action for a violation of section 540.08, a plaintiff must allege that his or her name or likeness is
used to directly promote a commercial product or service, such as T-shirts, hats, coffee mugs, etc.”
Id. at 1258. In dismissing the claim brought under § 540.08, the court further explained that
plaintiff “does not allege that his name and likeness were used to promote a product or service
from the television show.” Id.at 1260 (emphasis added).
separate and apart
22.

The court similarly ruled in Spilfogel v. Fox Broad., No.:
Co. 09-80813-CIV-

RYSKAMP/VITUNAC, 2009 WL 10666811 (S.D. Fla. Dec. 2, 2009). In Spilfogel
, the plaintiff
sued for an alleged violation of section 540.08 arising from use her image in an episode of the
television series COPS. Id. at *1. The plaintiff also alleged a violation of that section by use of
her likeness on defendant’s website to promote both the specific episode in which she involuntarily
appeared, as well as the series. Id. at *5. The court dismissed plaintiff’s claim, finding that section
540.08 did not prohibit such uses in “advertising incidental” to plaintiff’s appearance in the
particular episode of a larger series. As the court explained:
This would be a different case if [plaintiff] alleged that her image was used to
promote a certain brand of plastic sandwich bags, headlights, or traffic safety
school, for example. However, alleging that her image was used to promote the
she appeared in is not sufficient to support a
very episode and televisionthat
series
cause of action for violation of § 540.08.
Id. (emphasis added); see also
Spilfogel v. Fox Broad., Co.
2010 WL 11504189, at *4 (S.D. Fla.
May 4, 2010) (dismissing subsequent pleading for same reasons).

16

 23.

Case after case reflects this exact same limitation as to the scope of the statute.See,

e.g., Acosta v. Spanish Broad. Sys. of Del.,
, No. 15–21837–Civ–COOKE/TORRES,
Inc.
2015 WL
11237016 (S.D. Fla. Nov. 12, 2015) (recommending dismissal of § 540.08 claim because “use of
Plaintiff’s image or likewise in promoting his motion picture cannot give rise to liability under
Section 540.08”), adopted
, 2015 WL 11237017 (S.D. Fla. Dec. 4. 2015); Tyne, 204 F. Supp. 2d
at 1341 (granting judgment to movie producers on § 540.08 claim where their use of the decedents’
name or likeness was merely used in “promotion and advertising” of the very motion picture in
which those individuals were characters); Lane, 242 F. Supp. 2d at 1212-1215 (rejecting § 540.08
claim as a matter of law because “while [plaintiff’s] image and likeness were used to sell copies
of Girls Gone Wild
, her image and likeness were never associated with a product or service
unrelated to that work
” in which she was featured) (emphasis added).
24.

Here, Rigmaiden is attempting to plead exactly what that line of cases precludes

and has failed to allege that his name or likeness was used to promote anything separate and apart
from American Greed
. This is fatal to his claim and requires dismissal.
WHEREFORE, Defendants NBCUniversal Media, LLC and Kurtis Productions, Ltd.
request that this Court dismiss the First Amended Complaint, together with such other relief as the
Court deems appropriate.

CERTIFICATE OF SERVICE
I hereby certify that on this 18thday of September,
a true and correct copy of the
2018
foregoing has been efiled via the Florida Court’s E-Filing Portal with electronic notification being sent
to Daniel Rigmaiden, ddrigmaiden@gmail.com,
Pro se Plaintiff.

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 THOMAS & LOCICERO PL
915 Middle River Drive
Suite 309
Fort Lauderdale, FL 33304
Telephone: (954) 703-3416
Facsimile: (954) 400-5415
By:

/s/ Dana J. McElroy
Dana J. McElroy, Esq.
Florida Bar No. 845906
dmcelroy@tlolawfirm.com
Attorneys for Defendants
NBCUniversal and Kurtis

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