UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-22972

CURTIS JACKSON, III p/k/a 50 CENT

Plaintiff,

v.

ANGELA KOGAN and 

PERFECTION PLASTIC SURGERY, INC., 

d/b/a PERFECTION PLASTIC SURGERY & MEDSPA,

Defendants.

__________________________________________________/

DEFENDANTS’ MOTION TO DISMISS

Defendants, Angela Kogan And Perfection Plastic Surgery, Inc., D/B/A Perfection Plastic 

Surgery & MedSpa (each individually, a “Defendant,” and collectively, “Defendants”), by and 

through undersigned counsel, hereby file this Motion to Dismiss Plaintiff’s, Curtis Jackson, III 

p/k/a 50 Cent (“Plaintiff”), Complaint, and, in support thereof, state as follows:

OVERVIEW

1. Plaintiff filed his Complaint on September 16, 2022. Therein, Plaintiff alleges the 

following causes of action: (i) Count I (Right of Publicity – Unauthorized Misappropriation of 

Name/Likeness Pursuant to Fla. Stat. §540.08); (ii) Count II (Common Law Invasion of Privacy); 

(iii) Count III (Violation of the Lanham Act, 15 U.S.C. §1125(a): False Endorsement); (iv) Count 

IV (Violation of the Lanham Act, 15 U.S.C. §1125(a): False Advertising); (v) Count V 

(Conversion); and (vi) Count VI (Unjust Enrichment).

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2. Plaintiff’s Complaint fails to state a cause of action for which relief may be granted. 

For such reasons, as more fully explained below, Plaintiff’s Complaint must be dismissed against 

Defendants.

ARGUMENT

A. Legal Standard

A motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) should be 

granted when it appears that a plaintiff can prove no set of facts in support of his claim that would 

entitle him to relief. See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992). A court 

considering a Rule 12(b)(6) motion generally is limited to the facts contained in the complaint and 

attached exhibits. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009).

Notwithstanding, the Court has discretion to consider matters outside of the pleadings in a Fed. R. 

Civ. P. 12(b)(6) motion to dismiss for the purpose of converting such motion into a motion for 

summary judgment. See Fed. R. Civ. P. 12(b); see also Trustmark Ins. Co. v. ESLU, Inc. 299 F.3d 

1265, 1267 (11th Cir.2002); provided when such conversion occurs, the adverse party is “given 

express, ten-day notice of the summary judgment rules, of his right to file affidavits or other 

material in opposition to the motion, and of the consequences of default.” Griffith v. Wainwright, 

772 F.2d 822, 825 (11th Cir.1985). 

In order to state a claim for relief, the pleading must contain "a short and plain statement 

of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The U.S. Supreme 

Court explained that the purpose of the rule is to "give the defendant fair notice of what the 

plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). 

While a court is required to accept as true the allegations contained in the complaint when 

considering a Rule 12 motion, courts “are not bound to accept as true a legal conclusion couched 

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as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009). Factual allegations must contain more than "labels and 

conclusions;" a formulaic recitation of the elements of a cause will not do." Id. (citing Papasan v. 

Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief 

above the speculative level." Id. (citations omitted). "Facts that are 'merely consistent with' the 

plaintiff's legal theory will not suffice when, 'without some further factual enhancement [they] stop 

short of the line between possibility and plausibility of "entitle[ment] to relief."'" Weissman v. 

National Association of Securities Dealers, Inc., 500 F.3d 1293, 1310 (11th Cir. 2007) (quoting 

Twombly, 127 S. Ct. at 1966) (quoting DM Research, Inc. v. College of American Pathologists, 

170 F. 3d 53, 56 (1st Cir. 1999)). 

To 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.” Id. (quoting Twombly, 550 U.S. at 

570). Furthermore, as noted by the Supreme Court, the pleading party must "nudge[] [their] claims 

across the line from conceivable to plausible[; otherwise, their claims] must be dismissed.”

Twombly, 127 S. Ct. at 1974.

B. Plaintiff’s Complaint Fails to State a Claim For Relief Against Defendants.

Each of the six counts alleged by Plaintiff against Defendants fails to establish a claim for 

which relief may be granted. Particularly, the entirety of Plaintiff’s Complaint is based upon the 

assertion that: (i) Defendants did not have the authority to use Plaintiff’s name and/or image 

without Plaintiff’s prior consent, and (ii) at no point in time has Plaintiff ever been a client of 

Defendants, including, without limitation, for the purpose of obtaining plastic surgery services or

penile enhancement surgery. 

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However, it is clear from the Photo itself that the taking thereof was not a random 

happenstance or unsolicited occasion. The content of the Photo shows Plaintiff in Defendants’

office, next to Defendant in her role as a businesswoman/aesthetician (i.e. in professional attire).

Thus, it is disingenuous for Plaintiff to claim or allege that Plaintiff – who wishes for the Court to 

believe randomly stumbled into a medspa without purpose or specific intent – agreed to take the 

Photo under the “sole impression that [Defendant] was a fan seeking the photograph for her private 

and personal enjoyment.” See D.E. 1, ¶ 65. The Photo is not representative of Plaintiff running

into a random fan in the middle of the street; rather, it specifically highlights Plaintiff in a specific 

situation, for a specific purpose, in exchange of a specific transaction, each as further explained 

below.

In sum, Plaintiff’s claims suffer for the following reasons: (1) Plaintiff was, in fact, a client 

of Defendants, as evidenced by the Exhibits detailing Defendants’ records and other forms of 

documentation1, and Affidavit attached hereto; (2) in exchange for medspa services, Plaintiff 

agreed to take the Photo and allow it to be shared by Defendants on Defendants’ social media 

profiles, and (3) at no point in time have Defendants ever stated or implied that Plaintiff received 

plastic surgery services or penile enhancement surgery from Defendants.

i. Count One – Right of Publicity – Unauthorized Misappropriation of 

Name/Likeness Pursuant to Fla. Stat. §540.08

Fla. Stat. §540.08 prohibits the unauthorized publication of a person’s name or likeness. 

Specifically, the statute states:

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 given by ... [s]uch person

1 Plaintiff’s Complaint cites to Defendants’ status as a provider of health care services and ability to know 

whether an individual was treated by them based on “records and other forms of documentation” on 

numerous occasions. See e.g., D.E. 1, ¶¶4, 100

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In order to state a cause of action for violation of §540.08, the plaintiff must properly allege that 

his or her name or likeness was used to directly promote a commercial product or service. See

Fuentes v. Mega Media Holdings, Inc., 721 F. Supp. 2d 1255, 1258 (S.D. Fla. 2010). If such use 

is not made for any trade, commercial, or advertising purpose, then a claim for unauthorized 

misappropriation cannot exist. See Valentine v. CBS, Inc., 698 F.2d 430, 433 (11th Cir.1983) 

(recognizing that the proper interpretation of Fla. Stat. §540.08 requires the plaintiff to prove that 

the defendants used a name or likeness to directly promote a product or service); Tyne v. Time 

Warner Entm't Co., L.P., 204 F.Supp.2d 1338 (M.D.Fla.2002) (recognizing that Fla. Stat. §540.08 

only prohibits the use of a name or image when such use directly promotes a commercial product 

or service); Epic Metals Corp. v. CONDEC, Inc., 867 F. Supp. 1009, 1016 (M.D.Fla.1994) 

(“Florida Statute §540.08 prevents the unauthorized use of a name or personality to directly 

promote the product or service of the publisher.” ); National Football League v. The Alley, Inc., 

624 F. Supp. 6, 7 (S.D.Fla.1983) (“Section 540.08 of the Florida Statutes prohibit unconsented use 

of an individual's name and likeness only when such directly promotes a commercial product or 

service”); Loft v. Fuller, 408 So.2d 619, 622 (Fla. 4th DCA 1981) (“In our view, Section 540.08, 

by prohibiting the use of one's name or likeness for trade, commercial, or advertising purposes, is 

designed to prevent the unauthorized use of a name to directly promote the product or service of 

the publisher”). As such, the initial issue presented is whether Defendants’ use of the Photo was 

done to directly promote a commercial product or service.

The Photo shows Plaintiff standing with his arm around Defendant (with Defendant

dressed in professional attire), in the middle of Defendants’ office, and was posted on Defendants’

social media profiles with the caption, “Thank you @50cent for stopping by the number one med 

spa @bh_perfection_medspa.” However, neither the Photo itself, nor the caption thereof, purports 

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to show use of the Photo in direct promotion with any commercial product or service (i.e. offered 

medspa treatments, products, endorsement of plastic surgery services, endorsement of penile 

enhancement services, etc.). Rather, the Photo is an innocuous capture of Plaintiff and Defendant 

in Defendants’ office, with Defendants’ inclusion of a sentence containing pure puffery. However, 

the Photo does not expressly or implicitly associate or attribute such claims to be the words of 

Plaintiff. 

Inclusion of one's name, likeness, portrait, or photograph in any type of publication does 

not give immediate rise to a valid cause of action under §540.08. See Valentine v. C.B.S., Inc., 698 

F.2d 430, 433 (11th Cir.1983) (upholding a decision to grant summary judgment against plaintiff, 

who brought a claim under Florida Statute § 540.08 when Bob Dylan used her name in a song. 

The Eleventh Circuit reasoned that because the defendants did not use her name to directly promote 

a product or service, “use of a name is not harmful simply because it is included in a publication 

sold for profit.”). The Court has issued numerous decisions in support of this notion. See, e.g., 

Lane, 242 F. Supp. 2d 1205 (M.D.Fla.2002); Tyne, 204 F. Supp. 2d 1338 (M.D.Fla.2002); Loft, 

408 So. 2d 619 (Fla. 4th DCA 1981).

In Fuentes, the Southern District of Florida granted a motion to dismiss a claim under 

§540.08 upon determination that the plaintiff’s name and likeness – which plaintiff claimed was 

used by defendant without his consent – were not used for trade, commercial, or advertising 

purposes, because the publication at issue – the Maria Elvira Live show – was a television program 

intended to entertain and/or inform the public.

Similarly, not only is Plaintiff’s name and image not being used to directly promote any 

service or product of Defendants (as, again, there are no endorsement statements attributable to 

Plaintiff included or captioned in the Photo, nor does Defendants’ caption state that Plaintiff 

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received any services from Defendants), but Defendants’ sharing of the Photo was made solely for 

entertainment purposes (i.e. to share on social media amongst Defendants’ followers). Defendants’

have never shared the Photo with any third party publication for the purpose of claiming Plaintiff 

received plastic surgery services and/or obtained a penile enhancement procedure from Defendants

or expressly stating the Plaintiff endorsed such services. See Aff. Of Angela Kogan, ¶ 9-10. Any 

allegation to the contrary is: (i) a legal conclusion, absent of factual support to support such claim, 

and (ii) further problematic in that Plaintiff has wrongfully elected to apply the acts of a third party

onto Defendants.

Alternatively, even if the Court were to determine that Plaintiff’s name and image were 

used to directly promote a product or service, such use was made with the prior consent of Plaintiff. 

See Aff. Of Angela Kogan, ¶ 8. As shown via Exhibit A, attached hereto, Plaintiff’s girlfriend 

visited Defendants’ office for the purpose of receiving free medspa services in exchange for 

promoting Defendants’ business. Plaintiff joined his girlfriend on this visit, and also agreed to 

receive free medspa services in exchange for promoting Defendants’ business via taking the Photo 

and allowing it to be shared on Defendants’ social media profiles. Plaintiff’s approval of 

Defendants’ use of the Photo is further evidenced by the fact Defendants have – over the course 

of a two year span – shared the Photo on Defendants’ social media on multiple occasions without 

incident or prior demand to cease and desist from Plaintiff. As Plaintiff’s consent constitutes 

authorized use of the Photo to be shared by Defendants’ on Defendant’ social media profile, 

coupled with the fact Plaintiff enjoyed a benefit via the receipt of free medspa services in exchange 

for the Photo (see Aff. Of Angela Kogan, ¶ 8), Plaintiff is unable to assert a claim under §540.08.

Furthermore, as Defendants has never shared the Photo with any online publication for the purpose 

claiming Plaintiff’s endorsement or promotion of Defendants’ services, (see Aff. Of Angela 

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Kogan, ¶¶9-10), Defendants cannot be held responsible for the acts of third parties for which 

Defendants have no control or influence over.

ii. Count Two – Common Law Invasion of Privacy

Under Florida common law, the tort of invasion of privacy is divided into the following 

categories: (1) intrusion into individual's physical solitude or seclusion; (2) public disclosure of 

private facts; (3) portraying individual in false light in public eye; and (4) appropriation, i.e. 

commercial exploitation of property value of one's name. See Fuentes, 721 F. Supp. 2d at 1260.

To prevail on the common law claim, Plaintiff must allege Defendants commercially used the 

value of Plaintiff’s name for commercial, trade, or advertising purposes. See Almeida v. 

Amazon.com, Inc., 456 F.3d 1316, 1320 n. 1 (11th Cir.2006) (finding that the statutory and 

common law rights of publicity are “substantially identical”).

As the analysis for a common law invasion of privacy-misappropriation claim (which is 

what Count II of Plaintiff’s Complaint purports to be, as it simply recites the same allegations 

referenced in Count I of Plaintiff’s Complaint), it follows that Count II of Plaintiff’s Complaint 

must be dismissed for the reasons relating to Count I – i.e. (1) the Photo does not depict use of 

Plaintiff’s name or image for the purpose of directly promoting a product or service, (2) Defendants 

shared the photo solely on Defendants’ social media profile for entertainment purposes, (3) 

Defendants have never shared the Photo with any online publication for the purpose of claiming 

or implying Plaintiff received plastic surgery services and/or obtained a penile enhancement 

procedure from Defendants, and (4) alternatively, if the Court were determined that Defendants’ 

use of the Photo was done for commercial, trade, or advertising purposes, Plaintiff consented to 

such use via his agreement to receive free medspa services in exchange for taking the Photo for 

the purpose of allowing Defendants to share it on Defendants’ social media profiles. 

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iii. Count Three – Violation of the Lanham Act, 15 U.S.C. §1125(a): False 

Endorsement

§1125(a) of the Lanham Act states:

Any person who, on or in connection with any goods or services, or any 

container for goods, uses in commerce any word, term, name, symbol, or 

device, or any combination thereof, or any false designation of origin, false or 

misleading description of fact, or false or misleading representation of fact, 

which—(A) is likely to cause confusion, or to cause mistake, or to deceive as to 

the affiliation, connection, or association of such person with another person, 

or as to the origin, sponsorship, or approval of his or her goods, services, or 

commercial activities by another person...shall be liable in a civil action by any 

person who believes that he or she is or is likely to be damaged by such act

To state a claim for false endorsement under the Lanham Act, the plaintiff must show: (1) 

that it had trademark rights in the mark or name at issue, and (2) that the other party adopted a 

mark or name that was the same or confusingly similar to its mark, such that consumers were likely 

to confuse the two. See Suntree Techs., Inc. v. Ecosense Int'l, Inc., 693 F.3d 1338, 1346 (11th Cir. 

2012); see also Univ. of Ala. Bd. of Trs. v. New Life Art, Inc., 683 F.3d 1266, 1278 (11th Cir. 2012)

(“[W]e have never treated false endorsement and trademark infringement claims as distinct under 

the Lanham Act.”).

As a general rule, a person’s image or likeness cannot function as a trademark. See

Lancaster v. Bottle Club, LLC, 2017 WL 3008434, at *6 (M.D. Fla. July 14, 2017) (citing ETW 

Corp. v. Jierh Pub., Inc., 332 F.3d 915 (6th Cir. 2003)). To the extent Plaintiff is specifically 

asserting that Defendants’ use of the Photo without permission allegedly confused the public 

regarding Plaintiff’s association with Defendants’ goods and services, Plaintiff’s claim still fails. 

Courts have recognized false endorsement claims under the Lanham Act where a 

celebrity’s image or persona is used in association with a product so as to imply that the celebrity 

endorses the product. Id. Because the Photo does not: (1) show Plaintiff’s name or image in the 

promotion of any of Defendants’ products or services (as the caption simply thanks Plaintiff for 

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visiting Defendants’ office), or (2) contain any statements that may be attributed to Plaintiff as 

endorsing Defendants’ plastic surgery services or penile enhancement surgery, there can be no 

implied endorsement. 

But even so, as the Photo was taken by Plaintiff in exchange for free medspa services with 

the specific purpose of allowing Defendants to share on Defendants’ social media profiles and/or 

promote Defendants’ business (see Aff. Of Angela Kogan, ¶ 8), such Photo was used by 

Defendants as intended between the parties, and Plaintiff is thereby precluded from claiming 

damages as a result. Plaintiff attempts to skirt past this agreement by claiming Defendants acted

inappropriately by sharing the Photo with third party publications and/or sharing statements 

implying that Plaintiff was Defendants’ client for plastic surgery and penile enhancement 

procedures. See D.E. 1, ¶ 92. However, (1) at no point in time has Defendants shared the Photo 

with any online publication (see Aff. Of Angela Kogan, ¶ 9-10), and (2) in the Article that serves 

as the impetus of this action (which Article was not drafted or composed by Defendants), at no 

point therein does Defendant claim that Plaintiff has ever received plastic surgery or obtained a 

penile enhancement procedure from Defendants, with the only reference to Plaintiff therein being 

the following sentence: “Angela Kogan, who runs the Perfection Plastic Surgery And Medical Spa 

in Miami, has an extensive clientele of celebrities, including FloRida, 50 Cent, Odell Beckham, 

and more, that remain confidential.” As Plaintiff has been a client of Defendants (see Aff. Of 

Angela Kogan, ¶ 7-8), such statement is neither a false nor misleading representation of fact. As a 

result, Plaintiff is unable to sufficiently state a cause of action for false endorsement.

iv. Count Four – Violation of the Lanham Act, 15 U.S.C. §1125(a): False 

Advertising

Furthermore, under the Lanham Act, to state a claim for false advertising, the plaintiff must 

plead each of the following: (1) the defendant’s statements were false or misleading; (2) the 

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statements deceived, or had the capacity to deceive, consumers; (3) the deception had a material 

effect on the consumers' purchasing decision; (4) the misrepresented service affects interstate 

commerce; and (5) it has been, or likely will be, injured as a result of the false or misleading 

statement. See Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes & of 

Malta v. Fla. Priory of Knights Hospitallers of Sovereign Order of Saint John of Jerusalem, 

Knights of Malta, Ecumenical Order, 702 F.3d 1279, 1294 (11th Cir. 2012).

As with Plaintiff’s claim for false endorsement, because: (1) neither the Photo, nor 

Defendants’ sharing thereof, contain false or misleading statements (as Plaintiff has been a client

of Defendants for the purpose of receiving medspa services, see Aff. Of Angela Kogan, ¶ 7) or 

purport to show or imply that Plaintiff received plastic surgery and/or sexual enhancement

procedures from Defendants, (2) at no point in time have Defendants ever shared the Photo or 

other statements with any online publication for the purpose of expressing Plaintiff as an individual 

who received plastic surgery services or obtained a penile enhancement procedure from 

Defendants (see Aff. Of Angela Kogan, ¶ 9), and (3) the taking and use of the Photo was agreed 

upon between the parties in exchange for Plaintiff’s receipt of free medspa services (Aff. Of 

Angela Kogan, ¶ 8), it follows that Plaintiff is also unable to assert a claim for false advertising.

v. Count Five – Conversion

According to Florida law, conversion is an “unauthorized act which deprives another of his 

property permanently or for an indefinite period of time.” Fogade v. ENB Revocable Trust, 263 

F.3d 1274, 1291 (11th Cir.2001). “Thus, in order to state a claim of conversion, one must allege 

facts sufficient to show ownership of the subject property and facts that the other party wrongfully 

asserted dominion over that property.” Indus. Park Dev. Corp. v. Am. Exp. Bank, FSB, 960 F. 

Supp. 2d 1363, 1366 (M.D. Fla. 2013) (citing Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 

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4th DCA 2011)); see also Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F.Supp.2d 

1271, 1294 (S.D.Fla.2001) (stating In Florida, to state a claim for conversion, a plaintiff must 

allege an “(1) act of dominion wrongfully asserted; (2) over another's property; ... (3) inconsistent 

with his ownership therein.”). Plaintiff’s claim for conversion fails, as Plaintiff is unable to satisfy 

either the first or third element cited in Del Monte.

As Defendants’ taking and sharing of the Photo was consented to by Plaintiff in exchange 

for Plaintiff’s receipt of free medspa services (see Aff. Of Angela Kogan, ¶ 8), Plaintiff is unable 

the allege that Defendants wrongfully asserted dominion over Plaintiff’s name and image 

inconsistent with Plaintiff’s ownership therein. For such reasons, Plaintiff’s claim of conversion 

must be dismissed.

vi. Count Six – Unjust Enrichment

The Florida Supreme Court has stated that “[t]he elements of an unjust enrichment claim 

are a benefit conferred upon a defendant by the plaintiff, the defendant's appreciation of the benefit, 

and the defendant's acceptance and retention of the benefit under circumstances that make it 

inequitable for him to retain it without paying the value thereof.” Florida Power Corp. v. City of 

Winter Park, 887 So.2d 1237, 1242 n. 4 (Fla.2004).

Plaintiff contends that Plaintiff conferred a benefit upon Defendants by voluntarily taken 

the Photo, and that it would be inequitable for Defendants to retain the benefits conferred upon 

them by using the Photo without paying fair value for the image. See D.E. 1, ¶¶ 112, 114. However, 

as Plaintiff received value in exchange for the Photo – namely, free medspa services – not only 

was such an express transaction (see e.g., Validsa, Inc. v. PDVSA Servs., 424 F. App'x 862, 873 

(11th Cir.2001) (affirming district court's dismissal of counterclaim for unjust enrichment due to 

the existence of an express contract)), but it would also not be inequitable for Defendants to retain 

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the benefit, because Defendants have given Plaintiff value in exchange for the Photo. See, e.g. 

Pincus v. Am. Traffic Sols., Inc., 25 F.4th 1339, 1341 (11th Cir. 2022) (concluding that plaintiff 

failed to state a claim for unjust enrichment because plaintiff had received “value in exchange” for 

the conferred benefit.). Based on the fact each party received a mutually agreed upon benefit from 

the other, there is no circumstance in which it would be inequitable for the parties to retain the 

respective benefits conferred, and Plaintiff’s claim of unjust enrichment must be dismissed as a 

result thereof.

CONCLUSION

WHEREFORE, for the reasons set forth above, Defendants respectfully request that the 

Court enter an Order dismissing Plaintiff’s Complaint, with prejudice, and granting such other 

relief as the Court deems just and appropriate.

October 12, 2022 Respectfully submitted,

HEITNER LEGAL, P.L.L.C

Attorney for Defendants

215 Hendricks Isle

Fort Lauderdale, FL 33301

Phone: 954-558-6999

Fax: 954-927-3333

By: 

DARREN A. HEITNER

Florida Bar No.: 85956

Darren@heitnerlegal.com

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CERTIFICATE OF SERVICE

I hereby certify that on October 12, 2022, I served a true and correct copy of the foregoing Motion

via CM/ECF, which shall serve a copy hereof upon counsel of record for Plaintiff

By:

DARREN A. HEITNER 

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