[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13677

Non-Argument Calendar

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COURTNEY B. ANDERSON, 

Plaintiff-Appellant,

versus

COUPONS IN THE NEWS, 

a foreign corporation 

d.b.a. 

couponsinthenews.com, 

NAMECHEAP, INC., 

a foreign corporation, 

WHOISGUARD, INC., 

a foreign corporation, 

JOHN/JANE DOE, 

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2 Opinion of the Court 20-13677

Fictitious Defendants Does 1-3, 

Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 5:20-cv-00041-JSM-PRL

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Before WILSON, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:

Courtney Anderson appeals the district court’s Rule 12(b)(6)

dismissal, with prejudice, of her claim against Coupons in the News 

under Fla. Stat. § 540.08. For the reasons which follow, we affirm.1

Accepting the factual allegations in the second amended 

complaint as true, see, e.g., La Grasta v. First Union Sec., Inc., 358 

F.3d 840, 845 (11th Cir. 2004), Ms. Anderson alleged that she was 

arrested at a Best Buy store following a dispute over coupons. The 

store manager told police that Ms. Anderson had dropped her pants 

and was showing her buttocks.

1 Ms. Anderson also seeks to appeal the district court’s dismissal of certain 

other claims, but says that she is relying on the arguments she made below. 

See Appellant’s Br. at 14-15. Because such incorporation is improper, we do 

not address the other claims. See Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004).

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20-13677 Opinion of the Court 3

Ten days later, Coupons published an article on its website 

entitled “Pantless Couponer Arrested After Checkout Dispute.” 

The article was accompanied by a photograph of the front of a Best 

Buy store and a superimposed image of Ms. Anderson’s booking 

photograph.

In Count 1 of her second amended complaint, Ms. Anderson 

alleged that Coupons violated Fla. Stat. § 540.08(1)(a), which (as 

relevant here) prohibits the unauthorized publication or use of a 

person’s photograph or other likeness “for the purpose of trade or 

for any commercial or advertising purpose.” The Florida Supreme 

Court has held that the purpose of § 540.08 “is to prevent the use 

of a person’s name or likeness to directly promote a produce or 

service because of the way that the use associates the person’s 

name or personality with something else.” Tyne v. Time Warner 

Entertainment, 901 So.2d 802, 808 (Fla. 2005).

Ms. Anderson characterized the Coupons article—attached 

to the complaint as Exhibit B—as an “advertisement” in her complaint, but the district court ruled that a review of the document 

demonstrated that it was an article and not an advertisement. And 

because it was not an advertisement or commercial speech, Ms. 

Anderson’s claim under § 540.08(1)(a) failed.

We agree with the district court that Ms. Anderson failed to 

state a plausible claim under § 540.08(1)(a). See generally Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). When a document attached to a complaint conflicts with an allegation in the 

complaint, the document governs. See Hoefling v. City of Miami., 

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4 Opinion of the Court 20-13677

811 F.3d 1271, 1277 (11th Cir. 2016). And here Exhibit B, on its 

face, is an article reporting on Ms. Anderson’s arrest. It is not an 

advertisement. Nor is it commercial speech.

Ms. Anderson argues that Exhibit B is a publication that is a 

“digital marketing tool known as a click funnel advertisement designed and used solely to promote the business of coupons which 

is advertising.” Appellant’s Br. at 6. The argument is based on a 

line in Exhibit B that allows a reader to click to contact Coupons 

about advertising. See id. At 11. But the complaint does not contain any allegations or claims about a “click funnel advertisement,” 

and Ms. Anderson could not amend her complaint through her response to Coupon’s motion for attorney’s fees. See White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1200 (11th Cir. 2015) 

(“A plaintiff may not amend her complaint through argument in a 

brief opposing summary judgment”).

We affirm the district court’s dismissal of Count 1 with prejudice.2

AFFIRMED.

2 At the end of her brief, Ms. Anderson asks in a single sentence that we also 

reverse the district court’s award of attorney’s fees. We decline to do so because Ms. Anderson did not appeal from the award of attorney’s fees and because she has not explained why the award was legally erroneous.

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