Opinion
CIVIL ACTION NO. 1:12-CV-02808-AT
08-29-2013
NAFRA WORLDWIDE, LLC, Plaintiff, v. HOME DEPOT U.S.A, INC., JKA, INC., JEFFREY K. ANDERSON, and CANDICE L. ANDERSON Defendants.
ORDER
This matter is before the Court on Defendant Home Depot U.S.A., Inc.'s ("Home Depot") Motion to Dismiss [Doc. 24], and Defendants Candice L. Anderson, JKA Inc. ("JKA"), and Jeffrey K. Anderson's (collectively referred to as "the Anderson Defendants") Motion to Dismiss [Doc., 27] Nafra Worldwide, LLC's ("Nafra") Complaint. Nafra filed this action for copyright infringement and unjust enrichment related to its Hand-Crafted Iron Corbels and Sconces. (Pl. Second. Am. Compl., "Compl.," Doc. 22.)
Home Depot USA, Inc. is the proper defendant in this case, not Home Depot, as originally named. (See Doc. 39 (substituting, with consent of all parties and for good cause, Home Depot USA, Inc. as the party-defendant).)
For the reasons discussed below, the Court GRANTS Defendants' Motions to Dismiss [Docs. 24, 27].
I. LEGAL STANDARD
Home Depot moves to dismiss Nafra's claim for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). A pleading fails to state a claim if it does not contain allegations that support recovery under any recognizable legal theory. 5 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 1216 (3d ed. 2002); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the allegations of facts therein as true. See Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). Plaintiff is not required to provide "detailed factual allegations" to survive dismissal, but the "obligation to provide the 'grounds' of his 'entitle[ment] to relief requires 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). Essentially, the pleading "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
Consistent with these standards, the Court assumes all of Nafra's well-pleaded allegations in the complaint are true and construed all facts favorably towards Plaintiff's claims.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Background
This case revolves around corbels and sconces, which are decorative construction products sold by Home Depot. (Compl., ¶¶ 14-15.) On October 19, 2004, Frank W. Piraino, Jr. pitched an idea for corbels and sconces to Home Depot. (Compl., ¶ 17.) During the meeting, Home Depot's management-level-merchant, now Defendant, Jeffrey K. Anderson expressed interest and suggested that Mr. Piraino develop the concept further. (Compl., ¶ 18.) Acting on the suggestion, Mr. Piraino contracted with Guan Jia Sheng, a Chinese factory, to develop corbel prototypes. (Compl., ¶ 19.)
Over the course of the next two meetings, on April 22, 2005 and January 7, 2006, Home Depot requested and Mr. Piraino provided a SKU Set Up Sheet for four corbels and a merchandising display board. (Compl., ¶¶ 20-25.) After the January 7 meeting, Mr. Anderson retained several corbel samples and indicated he would share them with his merchants. (Compl., ¶ 25.)
Mr. Piraino then formed Nafra Worldwide, LLC to further pursue the opportunity with Home Depot, and he continues to own and operate the company. (Compl., ¶¶ 25, 10.) In his corporate capacity, Mr. Piraino again met with Home Depot, who requested that he provide advertising pamphlets and procure liability insurance with Home Depot as the Certificate Holder. (Compl., ¶¶ 26-27.) Nafra complied and gave Home Depot thousands of pamphlets and a copy of the liability insurance. (Compl., ¶ 28.) Nafra's indicates that it sought and procured the liability insurance "in accordance with Home Depot's strict requirements." (Compl., Doc. 22,¶ 28.) Those requirements are within Home Depot's Supplier Buyer's Agreement ("SBA"), which is not mentioned anywhere in Nafra's Complaint. (See SBA, Doc. 24-1, at 6-7.)
The Court notes that it appears that Plaintiff intentionally avoided any express reference to the Supplier Buyer's Agreement it entered into with Home Depot in its Complaint. As a result, the exact nature and parameters of the parties' business relationship, as spelled out in Plaintiff's Complaint, is unclear.
On October 19, 2007, on Home Depot's request, Mr. Piraino traveled to Charlotte, North Carolina for the grand opening of a Home Depot mill works concept store and set up the corbels on the merchandising display board. (Compl., ¶¶ 29-30.) Nearly a year later, Nafra claims its business relationship with Home Depot ended after Home Depot informed Nafra of new stocking requirements that would force Nafra to work through an existing Home Depot vendor without any guarantees of purchase. (Compl., ¶ 31.) Since these new requirements "made the project uncertain and economically infeasible," Nafra informed Home Depot that it could not comply and the relationship ended soon thereafter. (Compl., ¶¶ 31-32.)
Again, as a result of Plaintiff's somewhat vague allegations, the Complaint does not describe the old requirements nor how they were more economically feasible.
At some point, Mr. Anderson left Home Depot and set up JKA, Inc., which served as a vendor to Home Depot. (Compl., ¶¶ 34, 37.) Mr. Piraino tried to work with Anderson to sell Nafra products to Home Depot through JKA's vendor relationship. (Compl., ¶ 35.) Instead, Nafra claims that Mr. Anderson "cut out" Nafra and pursued the corbel project with Home Depot independently and "without notice or benefit" to Nafra. (Compl., ¶ 36-38.) JKA, Inc. later expanded its product line and market to sell additional models of corbels to additional retailers. (Compl., ¶ 39.)
Mr. Piraino discovered "exact copies" of Nafra corbels in a Miami Home Depot on February 5, 2011. (Compl., ¶ 40.) Four days later, he emailed Home Depot employees to alert them of the situation and Home Depot's counsel replied that there had been no infringement and that JKA, Inc. supplied the accused corbels. (Compl., ¶¶ 44, 48.) Nafra filed an application for copyright registration for the disputed corbels and sconces on February 22, 2011, and received copyright Registration No. Vau-090-242 on April 3, 2012. (Compl., ¶¶ 11, 13, 46.)
Home Depot continues to sell the disputed corbels and JKA maintains pictures of them on their website with a statement of copyright authorship. (Compl., ¶ 40, 50.) On information and belief, Nafra contends that JKA, Inc., Candice Anderson, and Jeffrey K. Anderson intentionally diverted the corbel business away from Nafra and "and unjustly enriched themselves by knowingly taking advantage of the investment previously made in the project by Nafra and Mr. Piraino." (Compl., ¶ 52.)
B. Procedural History
Nafra filed its initial Complaint against Home Depot, JKA, Inc., Jeffrey K. Anderson, and Candice L. Anderson on August 14, 2012. (Complaint, Doc. 1.) Nafra twice amended its Complaint on December 11, 2012 and December 15, 2012. (See Docs. 15, 22.)
On December 20, 2012, the Court granted the parties' Consent Motion that the Second Amended Complaint shall govern. (Doc. 25)
Plaintiff's Complaint, as amended, asserts three claims: (1) copyright infringement against all parties, (2) intentional interference with business opportunities and prospective advantage against only the Anderson Defendants, and (3) unjust enrichment against only the Anderson Defendants. (Compl., ¶¶ 57-72.)
III. ANALYSIS
The Court addresses each of Defendants' Motions to Dismiss separately. First, Home Depot argues that Nafra is contractually time-barred from bringing any claims pursuant to the one-year limitations provision in the SBA between the two parties. (Home Depot Mot. to Dismiss, Doc. 24, at 3-4.) That provision, found in Section 14d of the SBA, entitled "Disputes," states "[n]otwithstanding any provision to the contrary, Supplier agrees to bring any claim or dispute against The Home Depot (including payment disputes) within one year after the occurrence of the event giving rise to such dispute." (SBA, Doc. 24-1, at 14.) According to Home Depot, because Plaintiff did not bring its claim against Home Depot within one year of its discovery in February 2011 of the alleged infringement, Nafra's claims are barred by the SBA. Plaintiff contests Home Depot's Motion on three grounds: (1) the SBA was not a valid contract, (2) the SBA does not govern the copyright infringement claim, and (3) the SBA's one- year limitations provision is preempted by the federal Copyright Act's statute of limitations. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 10-25.) Plaintiff does not, and indeed could not, contest that it brought its claim more than one year after noticing the first infringing activity. (Compare Compl., Doc. 22, ¶ 40 (alleging that Piraino "discovered exact copies" on February 5, 2011) with (First) Complaint, Doc. 1., (filed August 14, 2012).) Therefore, if the Plaintiff's three arguments to void or restrict the SBA fail, then the SBA's one-year limitation bars this action and the Court must grant Home Depot's Motion to Dismiss.
Next, the Anderson Defendants seek dismissal of Plaintiff's intentional interference claim because Plaintiff failed to show each essential element of the claim. In its Response, Plaintiff indicated its intention to voluntarily dismiss its intentional interference claim pursuant to FED. R. CIV. P. 41 (a) "reserving all rights." (Pl. Opp. to Defs. Mot. Dismiss, Doc. 31, at 2.) Dismissal pursuant to FED. R. CIV. P. 41(a)(1) must be made by stipulation of the parties or by court order after an answer has been filed. The Anderson Defendants have not stated any objection in their reply to Plaintiff's request to voluntarily dismiss this claim. Accordingly, Plaintiff's claim for intentional interference with business relations is DISMISSED WITHOUT PREJUDICE. See FED. R. CIV. P. 41 (a)(2) (providing that "an action may be dismissed at the plaintiff's request by court order, on terms that the court considers proper."); McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th Cir. 1986) (stating that the court enjoys broad discretion in determining whether to allow a voluntary dismissal under Rule 41(a)(2) and may "impos[e] such costs and attach[] such conditions to the dismissal as are deemed appropriate.").
Finally, Candice L. Anderson moves to dismiss all claims asserted against her because Nafra failed to allege that she abused the corporate form and therefore has not pierced the corporate veil of protection from individual liability. (Defs. Mot. to Dismiss, Doc. 27, at 6-7.) Nafra contends that Ms. Anderson is personally liable, without any piercing of the corporate veil, because (1) she is married to JKA's owner and primary manager, Jeffrey K. Anderson, (2) she serves as CEO, COO, and Secretary of the company, and (3) she had a financial interest in the infringing activity and the ability to supervise it. (Pl. Opp. Defs. Mots. Dismiss, Doc. 31, at 4.)
A. Home Depot's Motion to Dismiss: SBA
1. Validity of SBA: Consideration, Mistake, Unconscionability
Home Depot moved to dismiss based on a provision within the SBA that required Nafra to bring any claim against Home Depot within one year of its occurrence. (Home Depot Mot. Dismiss, Doc. 24, at 6-8.) Though Nafra contests that the SBA governed the entire relationship between the two parties (see infra "Scope of SBA, section III.A.2), Nafra's procuring liability insurance in compliance with the SBA's "strict requirements" gives rise to the presumption that the SBA was the contract between the two parties. Plaintiff resists this presumption in its response to Home Depot's Motion to Dismiss. Plaintiff first contends the SBA is void because it lacked consideration. Plaintiff next argues that the one-year limitations provision is unenforceable either because it was the result of a mistake or because it is unconscionable. The Court addresses the arguments in turn.
The Court may rely on the SBA when considering Home Depot's Motion to Dismiss, without converting it to a motion for summary judgment, because it is central to Plaintiff's claim and its authenticity is not challenged. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).
a. The SBA was subject to consideration
First, axiomatically, all contracts must have consideration. Isbell v. Credit Nation Lending Service, LLC, 735 S.E.2d 46, 55 (Ga. Ct. App. 2012). "Any benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by or charge imposed upon him to whom it is made" qualifies as consideration. Antoskow & Assocs., LLC v. Gregory, 629 S.E.2d 1, 4 (Ga. Ct. App. 2005) (internal citations omitted). Slight consideration suffices. Franklin v. UAP/GA. AG. CHEM, Inc., 514 S.E.2d 241, 243 (Ga. Ct. App. 1999). Courts do not closely examine the adequacy of such consideration. Wolfe v. Breman, 26 S.E.2d 633, 635 (Ga. Ct. App. 1943).
Home Depot's invitation to Nafra to display and advertise its product in a Home Depot store is something of value and, without more, sufficient consideration for the SBA. Georgia courts have long recognized that advertising can anchor a contract. See, e.g., Automobile Battery Co. v. Geraghty & Co., 118 S.E. 412, 421-413 (Ga. Ct. App. 1923) (resolving a contract dispute over bulletin advertising and impliedly recognizing that advertising may form the bargained for exchange). Thus, the ability to advertise in Home Depot provides the requisite consideration for the SBA.
Plaintiff does not argue that such advertising is not consideration so much as it is the wrong consideration. According to Nafra, "[p]erformance must be substantially in compliance with the spirit and letter of the contract, and must therefore include the actual consideration contemplated by the contract." (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 25.) Plaintiff conflates contract formation with contract performance. For example, in support of its "Failure of Consideration" argument, Plaintiff cites O.C.G.A. § 13-4-20 and Crooks v. Chapman Co., 185 S.E.2d 787 (Ga. Ct. App. 1971). (See Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 15.) Both the statute and the case deal with good faith in the performance of an established contract, requiring that performance be substantially compliant with the terms and spirit of the contract. Thus, a breach of contract claim may be established under Georgia law by a party's failure to substantially comply with the terms of a contract. By contrast, Plaintiff here seeks to void the contractual requirements of the SBA contract based on its contention that Home Depot's provision of advertising fell short of the consideration Plaintiff thought it had bargained for under terms of the SBA
Instead, to void a contract, Plaintiff must show a total absence of consideration. Bollen v. Harkelroad & Hermance, P.C., 456 S.E.2d 73, 76 (Ga. Ct. App. 1995). If receiving services or products of any value, then Plaintiff may not establish total lack of consideration. Greene v. Johnson, 318 S.E.2d 205, 206 (Ga. Ct. App. 1984) ("Where it appears from the evidence that the goods have some value, a plea of total failure of consideration has not been sustained [cit.], and absent proof of the extent of the failure, partial failure of consideration has not been sustained.") Thus, inadequate or partial failure of consideration does not void a contract but instead, may authorize a claim for breach of contract damages based on particularized proof of a the extent of a partial failure of consideration and resulting damages. Id.; Coast Scopitone, Inc. v. Self, 192 S.E.2d 513, 515 (Ga. Ct. App. 1972). As stated above, Plaintiff's advertisement in Home Depot's store negates a finding of a total lack of consideration and consequently forecloses voiding the contract on this ground.
b. Nafra does not establish a mistake
Next, Plaintiff alleges that the SBA's one-year limitations provision for all actions is unenforceable because Nafra was unaware of the provision and Home Depot knew or should have known Nafra was unaware of it. (Pl. Opp. to Home Depot's Mot. Dismiss, Doc. 30, at 13.) Plaintiff relies on the Georgia Supreme Court's decision in Singer for the proposition that a party cannot enforce a contractual provision agreed to by mistake when the opposing party knew or should have known of the mistake. (Pl. Opp. to Home Depot Mot. Dismiss, Doc. 30, at 13 and 30, (citing Singer v. Grand Rapids Match Co., 43 S.E. 755, 757 (Ga. 1903) (affirming grant of nonsuit on grounds that contract for sale of "matches by the carload" contained mistake as to the number of matches sold as a result of ambiguous language used in the defendant's price list and quotes). Singer explained that courts will frequently enforce contracts where one party mistakenly agreed to a provision. Id. "But where the mistake is patent — where the opposite party knew or should have known," the Georgia Supreme Court explains, "no contract has been made." Id. (finding that plaintiff's interpretation under the contract that he bought five car loads of matches as opposed to defendant's interpretation that it sold one car load of matches was the result of a mistake in the calculation of the number of matches per box that should have been apparent to the plaintiff based on "everyday experience" regarding wholesale and retail rates). Thus, to establish that the contract was void under Singer because of his unilateral mistake, Plaintiff would have to allege(at the motion to dismiss stage facts sufficient to plausibly suggest that Nafra made a mistake and Home Depot knew or should have known of the mistake.
A mistake relievable in equity must be mutual. See O.C.G.A. § 13-5-4 (If the consideration upon which a contract is based was given as a result of a mutual mistake of fact or of law, the contract cannot be enforced); O.C.G.A. § 23-2-22. A mutual mistake is one "shared by, or participated in by, both parties, or a mistake in common to both parties, or reciprocal to both parties; both must have labored under the same misconception in respect of the terms and conditions of a written instrument, intending at the time of the execution of the instrument to say one thing and by mistake expressing another, so that the instrument as written does not express the contract or intent of either of the parties. . . ." Lawton v. Byck, 124 S.E.2d 369, 373 (Ga. 1962). Plaintiff does not assert the existence of a mutual mistake.
As set forth more fully below, Plaintiff has failed to make such a showing necessary to void the SBA's limitation provision. Claiming only that it was not aware of contractual provisions, Plaintiff cannot establish a mistake. Georgia law is clear: a party who can read a contract must do so. See, e.g., Tillman v. Byrd, 89 S.E.2d 479 (Ga. 1955); A.J. Concrete Pumping, Inc. v. Richard O'Brien Equip. Sales, Inc., 353 S.E.2d 496 (Ga. 1987) (denying plaintiff's request for reformation of contract on grounds of alleged mistake because plaintiff's president failed to read the contract before signing); Fincher v. Dempsey, 433 S.E.2d 78, 79 (Ga. Ct. App. 1993). Plaintiff's arguments - that it cannot be bound by the one-year limitations provision because it was buried in fine print and incorporated by reference through language from the HDLink website do not excuse it from its obligation to read what it signs. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 22.) Nor do these arguments support an inference that Home Depot knew or should have known that Nafra did not have notice of the one-year limitations provision. Absent fraud or illiteracy, contracts bind signatories. See, e.g., Georgia Medicine Co. v. Hyman & Co., 45 S.E. 238, 239 (Ga. 1903) ("[The Georgia Supreme Court has] never held that a party may escape liability because of ignorance of the contents of his contract, when that ignorance was due to his own negligence, and not to any action or representation amounting to fraud."); Wright v. Safri Club Int'l, Inc., 2013 WL 3242672 *5 (Ga. Ct. App. June 28, 2013) (finding a buyer's agreement enforceable, despite the party not reading it, because the party "neither presented a reason why he could not have requested to read it nor evidence that he would have been prevented from reading it").
A mere unilateral mistake, in the absence of fraud or inequitable conduct, is not a defense to contractual liability. See Georgia Glass & Metal, Inc. v. Arco Cehmical Co., 410 S.E.2d 142, 143-144 (Ga. Ct. App. 1991) (holding that "while [plaintiff] was obviously mistaken about the effect of the joint pay agreement," where the terms of the agreement were not ambiguous, plaintiff's "[u]nilateral mistake [wa]s not a defense to contractual liability."); Sepulvado v. Daniels Lincoln-Mercury, Inc., 316 S.E.2d 554, 557 (Ga. Ct. App. 1984) ("It is the duty of contracting parties to inform themselves with reference to the subject matter about which they desire to contract; if they fail to do so and a mistake is made owing to their own ignorance and failure to inform themselves, then any injury results from their own conduct. . . . Relief is not available on the basis of a unilateral mistake in the absence of fraud or inequitable conduct or other special circumstances.") (citations omitted). "As a general rule, equity will not rescind a contract based on a unilateral mistake where the party claiming mistake could have discovered the truth through reasonable diligence. . . ." John K. Larkins, Jr., Georgia Contracts: Law and Litigation, § 3:24, n. 40 (2d ed. 2011) (citing Decision One Mortg. Co., LLC v. Victor Warren Properties, Inc., 696 S.E. 2d 145 (Ga. Ct. App. 2010); see also § O.C.G.A. 23-2-29; see also Parrish v. Jackson W. Jones, P.C., 629 S.E.2d 468, 471 (Ga. Ct. App. 2006) ("One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relationship or trust or confidence exists. Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action.").
Plaintiff's Complaint and Response in Opposition to Motion to Dismiss do not demonstrate a mistake. Nor are special circumstances pled or argued here that would excuse Plaintiff from this contractual rule. Instead, Plaintiff borrows boilerplate language from Singer, a century old Georgia Supreme Court case, distinguishable on its face, in an attempt to controvert a foundational element of contract law, that a party should read and understand the entire contract before signing. Nafra's "it was not aware" argument thus simply fails.
c. The SBA is not unconscionable
Last, Nafra claims that the one-year limitations provision is unconscionable and, thus, unenforceable. (Pl. Opp. Home Depot's Mot. Dismiss, Doc. 30, at 13, 22-24.) Unconscionability is a question of law. If a court finds a contract provision unconscionable, then it may void the contract, void the provision, or limit the application of the provision to avoid the unconscionable result. O.C.G.A. § 11-2-302(1). "An unconscionable contract is one such as no man in his senses, and not under a delusion[,] would make on the one hand, and as no honest and fair man would accept on the other." Hall v. Wingate, 126 S.E. 796, 813 (Ga. 1924). The test for unconscionability under Georgia law relies on a slew of factors under two umbrella categories: procedural and substantive. NEC Techs., Inc. v. Nelson, 478 S.E.2d 769, 771-772 (Ga. 1996). Procedural unconscionability addresses the formation of the contract while substantive unconscionability regards the contractual terms themselves. Id. at 771. Georgia courts require both procedural and substantive unconscionability before voiding part or all of a contract. Id. at 773, .n. 6; accord Clark v. Aaron's, Inc., 914 F. Supp. 2d 1301, 1310 (N.D. Ga. 2012).
Both broad categories of unconscionability contain a non-exhaustive list of factors that courts may consider. For procedural unconscionability, courts may consider "the age, education, intelligence, business acumen and the experience of the parties, relative bargaining power, the conspicuousness and comprehensibility of the contract language, the oppressiveness of the terms, and the presence or absence of a meaningful choice." Id. at 771-772. The Georgia Court of Appeals subsequently grouped the procedural factors into two core considerations: oppression and surprise. Mullis v. Speight Seed Farms, Inc., 505 S.E.2d 818, 820 (Ga. Ct. App. 1998). Substantive unconscionability, on the other hand, involves analyzing "the commercial reasonableness of the contract terms, the purpose and effect of the terms, the allocation of risk and similar public policy concerns." Nelson, 478 S.E.2d at 772.
Plaintiff contends that the one-year limitations provision is both procedurally and substantively unconscionable, but this Court finds otherwise. (Pl. Opp. Home Depot's Mot. Dismiss, Doc. 30, 22-24.) First, as Home Depot points out, Georgia law specifically allows parties to UCC contracts to shorten the length in which to bring a claim to one year and thus the SBA's one year limitation cannot be substantively unconscionable. (Home Depot Reply Br. Supp. Mot. Dismiss, Doc. 33, at 8 (citing O.C.G.A. § 11-2-725(1) ("By the original agreement the parties may reduce the period of limitation to not less than one year[.]") and William J. Cooney, P.C. v. Rowland, 524 S.E.2d 730, 733 (Ga. Ct. App. 1999) ("That which the law specifically permits cannot be unconscionable.")).)
Next, Nafra does not direct the Court to cases of procedural unconscionability, but instead offers conclusory allegations on the procedural unconscionability factors from Nelson. Nafra argues that Home Depot has greater business acumen and bargaining power than Nafra and that the one-year-bar was inconspicuous because it was in the fine print of a prolix contract and directed Nafra to a website to find the actual terms. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 23.) Yet, in a similar context, the Georgia Court of Appeals explains that "lack of sophistication or economic disadvantage of one attacking arbitration [without more] will not amount to unconscionability." Saturna v. Bickley Const. Co., 555 S.E.2d. 825, 827 (Ga. Ct. App. 2001). Based on this authority, this Court cannot find the SBA provision unconscionable.
Nafra made frequent references to the "fine print" and the fact that the one-year limitations provision was not within the In-store Service Agreement - the document Mr. Piraino signed. (See, e.g., Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 2.) The language incorporating the SBA, however, was printed directly below the signature line where Mr. Piraino signed and clearly referenced that the terms of the SBA were a part of the contract. (Executed SBA Forms, Doc. 17-3, at 5 ("This Supplier Buying Agreement is subject to the Terms and Conditions attached hereto as well as the Supplier Reference Manual (which may be amended from time to time by Home Depot), which has been provided to Supplier, and will become part of the Supplier Buying Agreement.") Since clearly stated, such incorporation by reference poses no problem for the validity of the contract. See Dan J. Sheehan Co. v. Ceramic Technics, Ltd., 269 S.E.2d 773, 777 (Ga. Ct. App. 2004) (internal citations omitted). Moreover, as mentioned above, Plaintiff obliquely acknowledged its awareness of the SBA terms by its reference to procuring liability insurance "in accordance to Home Depot's strict requirements." (Home Depot Mot. Dismiss, Doc. 24, at 3; Compl., Doc. 22,¶ 28.) Those "strict requirements" are located in the SBA along with the one-year limitations provision, evidencing Plaintiff's knowledge that the SBA terms governed the relationship.
If the Court accepted Nafra's argument, unconscionability would soon become the rule rather than the exception and uncertainty would hover ominously over all contracts. Cf., e.g., Crawford v. Results Oriented, Inc., 548 S.E.2d 342, 343 (Ga. 2001) (upholding provision that waived mobile home buyer's right to a jury trial against the manufacturer, dealer, and lender); Hiers v. Estate of Hiers, 628 S.E.2d 653, 658 (Ga. Ct. App. 2006) ("[T]he fact a prenuptial agreement perpetuates an existing disparity in wealth between the parties does not render it unconscionable."); Thomas v. T & T Straw, Inc., 561 S.E.2d 495, 497 (Ga. Ct. App. 2002) (denying unconscionability despite the lessee securing the same rental rate for forty years, along with an absolute right to terminate without cause, an absolute right to modify the property without lessor's consent, and final approval of any attempt by lessor to transfer or assign any interest in the land); Hall v. Freuhauf Corp., 346 S.E.2d 582, 583 (Ga. Ct. App. 1986) (upholding warranty that banned incidental and consequential damages because "[a] limitation of remedies in a commercial setting is not considered unconscionable"). Georgia courts rarely undo parties' agreements for alleged unconscionability and this case provides no exception.
The disputed one-year limitations provision is clearly labeled and simply worded. Section 14d of the SBA, entitled "Disputes," states "[n]otwithstanding any provision to the contrary, Supplier agrees to bring any claim or dispute against The Home Depot (including payment disputes) within one year after the occurrence of the event giving rise to such dispute." (SBA, Doc. 24-1, at 14.) In addition, Plaintiff has not alleged any procedural oddities with the contracting process. The Court acknowledges that Home Depot certainly had more bargaining power and the Court presumes Nafra's assertion that the one-year limitations provision was a take-it-or-leave-it-provision. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 23.) Without more, however, Nafra cannot establish procedural unconscionability. As the Georgia Court of Appeals explained in Hall, "limitation of remedies in a commercial setting is not unconscionable." Hall, 346 S.E.2d at 583. As Nafra cannot establish either substantive or procedural unconscionability, it has failed to demonstrate that the SBA's one-year limitations provision is invalid.
2. Scope of SBA: "The Relationship" and Termination
Nafra asserts that the one-year limitations provision does not bar its copyright claim against Home Depot because the SBA does not apply to transactions that do not arise under the SBA, which according to Nafra, only governs claims relating to purchases made by Home Depot under the SBA. The In-Store Service form, signed by Nafra's President, provides, in pertinent part, "[t]he SBA shall govern the relationship between the Home Depot supplier, its affiliates, and subsidiaries, provided that nothing contained in this Agreement will alter or amend the SBA except as expressly provided herein." (In-Store Service, Doc. 17-2, at 2.) Nafra poses two alternative arguments to restrict the scope of the SBA.
First, Nafra contends that the SBA only extends to the "supplier relationship," and that the SBA does not govern all matters between Home Depot and Nafra. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 16.) Alternatively, , even assuming the SBA covers the entire relationship, Nafra contends the enforceability of the one-year limitations provision expired when the parties' relationship ended in January 2008 after Nafra could not meet Home Depot's vending requirements. The Court relies on two familiar Georgia cannons of contract interpretation when evaluating Nafra's arguments. First, "a contract must be given a reasonable construction which will uphold and enforce the instrument, if possible, rather than a construction which would render it meaningless and ineffective." Brown v. Chrysler Corp., 143 S.E.2d 575, 576 (Ga. Ct. App. 1965). Next, a contract "must be read reasonably, in its entirety, and in a way that does not lead to an absurd result." Office Depot, Inc. v. District at Howell Mill, LLC, 710 S.E.2d 685, 689 (Ga. Ct. App. 2011). Under these cannons, Nafra's arguments seeking to limit the scope of the SBA fail. Nafra contends that the plain meaning of the term "relationship" in the In-Store Service form in the context of the SBA means only the supplier relationship. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 16.) By this approach, anything unrelated to the supplier relationship would not be governed by the SBA. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 17.) Nafra's argument proves untenable upon a brief review of the form's language.
The In-Store Service form includes some boilerplate language that provides that the terms of the SBA govern unless explicitly stated otherwise. (In-Store Service, Doc. 17-2, at 2) ("The SBA shall govern the relationship between the Home Depot supplier, its affiliates, and subsidiaries, provided that nothing contained in this Agreement will alter or amend the SBA except as expressly provided herein."). Nafra would like to use the clause to restrict provisions of the SBA by claiming that (1) Home Depot was not a party to "the relationship" portion (only a Home Depot supplier (here, Nafra) was) and (2) the provision is ambiguous requiring the Court to strictly construe the one-year limitations provision. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 17-18.)
Nafra's first argument, that the SBA does not relate to Home Depot's relationships with its suppliers, is nonsensical. On the one hand Nafra contends "the purpose of the SBA is to establish a 'supplier relationship' under which Home Depot would purchase products from Nafra," (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 16) and on the other hand Nafra asserts "the clause at issue does not actually state that the SBA applies to the relationship between the Home Depot Supplier (Nafra) and the Home Depot," (Id. at 17) (emphasis in original). Nafra does not seriously dispute that it entered into a business relationship with Home Depot. Moreover, when read together, the In-Store Service form and the SBA represent the entire agreement between the parties. The In-Store Service form provides that it "amends and supplements the Home Depot Supplier Agreement (SBA)" and that "nothing contained in the [In-Store Service form] will alter or amend the provisions of the SBA except as expressly provided herein." (In-Store Service, Doc. 24-2 at 2.) The SBA provides that:
Section 1.1. This Home Depot Supplier Buying Agreement is an integrated agreement consisting of these Terms and Conditions ("Terms and Conditions"), the Supplier Reference Manual ("Supplier
Reference Manual" or "Reference Manual") and those forms listed in Section 15 hereunder ("Forms") [listing various foms including the "Insurance Certificate" and "Supplier Buying Agreement Forms"] (collectively, the "Supplier Buying Agreement" or "Agreement").(SBA, Doc. 24-1 at 3, 15.) The In-Store Service form did not purport to alter any of the material terms of the SBA at issue here, including the limitations provision. Accordingly, the SBA, as incorporated by the In-Store Service form, governs Nafra's business relationship with Home Depot and the one-year limitations provision applies.
Section 14.9. These Terms and Conditions, together with the Supplier Reference Manual, all Forms, and any applicable exhibits represent the entire and integrated Agreement between the parties hereto and supercede all prior negotiations, representations or agreements, written or oral. No changes or modifications to the Terms and Conditions are permitted unless made in writing as an addendum hereto and signed by both parties.
Nafra's second argument, that the contract ended in January 2008 and the parties were no longer bound by the SBA after that point, similarly fails. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 18.) The In-Store Service Form signed by Mr. Piraino provides "Any termination or expiration of this Agreement for any reason shall not terminate the SBA." (In-Store Service, Doc. 24-1 at 2.) Additionally, as Home Depot correctly points out, interpreting a contract as Nafra suggests would forever undo limitations on remedies. Cf. Encompass Ins. Co. v. Friedman, 682 S.E.2d 694, 696 (Ga. Ct. App. 2009) ("Georgia law is clear that contractual limitations like the one presented here are valid and will be enforced by the courts); Livaditis v. American Cas. Co., 160 S.E.2d 449, 452 (Ga. Ct. App. 1968) ("Absent circumstances constituting waiver or estoppel, provisions creating a contractual statute of limitation are in general valid and binding."); Henkel Corp. v. Leggett & Platt, Inc., 2009 WL 2230813 (N.D. Ga. 2009) (enforcing a one-year-bar, which was incorporated by reference in the original contract, and dismissing plaintiff's claim).
The Court notes a minor discrepancy in the dates of this alleged termination. In its Complaint Nafra alleges that "on or around June 1, 2008" Home Depot changed their vendor requirements and that spelled the end of the relationship. (Doc. 22, ¶ 31). In its response to Home Depot's Motion, however, Nafra contends the contractual relationship ended January 2008. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 18.) Whether the term of the SBA ended in January or June of 2008 is immaterial to the Court's determination of its application to Plaintiff's claims.
If a party could unilaterally terminate a contract and avoid the burden of a remedy limitation, then such limitations would no longer exist. Recognizing Georgia's long history to the contrary, this Court cannot find that the one-year limitations provision expired with the contract. See Chrysler Corp., 143 S.E.2d (avoiding contract constructions that render terms meaningless); see also, Quint Measuring Sys., Inc. v. Home Depot U.SA., Inc, No. 1:10-cv-01963 at 10 (N.D. Ga. 2012) (dismissing plaintiff's 2010 claims because of one-year-bar despite the termination of relationship the year before).
Nafra raises an interesting question about how long a limitations provision may bind parties after the termination of the contractual relationship, but, fortunately, the Court need not address that issue head-on to address Home Depot's Motion to Dismiss. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 3.) Since Nafra's allegation, that Mr. Anderson copied Nafra designs while working for Home Depot, arose during its relationship with Home Depot, the Court need not determine how far a limiting provision extends beyond the end of the contractual relationship. (Compl., ¶¶24-30.) As such, any claims against the company stemming from that event would have to come within one year after Mr. Piraino was on notice of the alleged infringement. (SBA, Doc. 24-1, at 14 ("Supplier agrees to bring any claim or dispute against the Home Depot . . . within one year after the occurrence of the event giving rise to such disputes.")
Nafra fails in its attempt to restrict the SBA. The one-year limitations provision applies to Plaintiff's claims in the present action.
3. Preemption under the Copyright Act
As noted above, Home Depot contends that because Nafra failed to bring its claim on or before February 5, 2012, it is barred by the SBA's one-year limitations provision. In a last-ditch attempt to salvage its claim against Home Depot, Nafra asserts that the provisions of the SBA are preempted by the Copyright Act. Nafra offers two arguments in support of its preemption theory. First, the federal Copyright Act's three year statute of limitations provision preempts the SBA's one-year limitations provision. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 18-21.) Second, the Copyright Act preempts Home Depot's "discovery" accrual rule for purposes of determining when the statute of limitations begins to run. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 21.)
Home Depot's argument is based on Nafra's allegation in the Complaint that it discovered that Home Depot was selling exact copies of its corbels in a Miami Home Depot on February 5, 2011. (Compl. ¶ 40.) Nafra filed its Complaint on August 14, 2011.
Both arguments fold into a single question, whether private parties may restrict rights arising under the Copyright Act. The Eleventh Circuit has not yet squarely addressed the precise issues raised by Nafra here. Generally speaking, however, the Supreme Court has historically and consistently stated that "in the absence of a controlling statute to the contrary, a provision in a contract may validly limit, between the parties, the time for bringing an action" to a shorter period than a statute's general limitations period. Order of United Commercial Travelers v. Wolfe, 331 U.S. 586, 608 (1947) (giving "full faith and credit" to 6-month contractual limitations provision that shortened state law 6-year statute of limitations for contract actions); Missouri, K. & T.R. Co. v. Harriman Bros., 227 U.S. 657, 672 (1913) ("[T]here is nothing in the policy or object of [statutes of limitation] which forbids the parties to an agreement to provide a shorter period, provided the time is not unreasonably short."). The Eleventh Circuit follows the well established principle that "parties may agree to shorten a statutory limitations period, 'provided that the shorter period itself [is] reasonable' and there is 'no controlling statute to the contrary.'" Farris v. Celebrity Cruises, Inc., 487 F. App'x 542, 544 (11th Cir. 2012); (holding that the three-year statute of limitations for maritime torts does not prohibit parties from contractually shortening that limitations period); Doe v. Carnival Corp., 167 F. App'x 126, 127 (11th Cir. 2006) (finding that statute of limitations provision in federal admiralty law did not abrogate the parties' contractual provision shortening federal three year statute of limitations for claims involving minors); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337 (11th Cir. 2005) (enforcing two-year limitations period set forth in software purchase agreement and finding that shortened contractual limitations provision did not violate state public policy); Northlake Reg'l Med. Ctr. v. Waffle House Sys. Employee Benefit Plan, 160 F.3d 1301, 1303 (11th Cir. 1998) (finding contractual limitations periods on ERISA actions are enforceable, regardless of state law, provided they are reasonable).
In Farris, the Eleventh Circuit addressed the enforceability of a contractual limitations provision purporting to shorten the three year statute of limitations for maritime torts in 46 U.S.C. § 30106. There, the plaintiff argued that her suit was timely under 46 U.S.C. § 30508(b)(2), precluding the owner of a "vessel transporting passengers ... between ports in the United States, or between a port in the United States and a port in a foreign country" from contracting for a limitations period for maritime personal injury claims that is "less than one year after the date of the injury" because the cruise ship on which she traveled never entered a United States port. Id. at 544. The Farris Court rejected the plaintiff's argument, finding that neither statutory provision prohibited the parties from contractually shortening that limitations period. Id. (stating that the plain language of [46 U.S.C. § 30508(b)(2)] provides that a cruiseship owner cannot shorten the limitations period to less than one year if the cruise ship entered a United States port. [cit] It does not mean, as [plaintiff] argues, that parties may not contractually shorten the statutory limitations period if the cruise ship does not enter a United States port.). Instead, the Eleventh Circuit held that "[p]arties are generally allowed to contract for a shorter limitations period than that provided by statute" where there is no "controlling statute to the contrary," i.e. where the applicable statute "does not prohibit parties from contractually shortening that limitations period." Id. (citing Wolfe, 331 U.S. at 608.) In Entous, the most analogous case cited by the parties on the precise issue, the court recognized (without expressly deciding the issue in that case) that parties may contract around the Copyright Act's three-year statute of limitations. Entous v. Viacom Int'l, Inc., 151 F. Supp. 2d 1150, 1156 (C. D. Cal. 2001) (citing Wolfe, 331 U.S. at 608, MFS Int'l, Inc., 50 F.Supp.2d at 521-23, and Harriman Bros., 227 U.S. at 672).
Similarly, in MFS Intern., Inc. v. International Telcom Ltd., the district court for the Eastern District of Virginia addressed whether parties can, by contract, agree to a limitations provision shorter than the two-year period prescribed in the Federal Communications Act, 47 U.S.C. § 415(b). MFS Intern., Inc. v. International Telcom Ltd., 50 F.Supp.2d 517, 521-523 (E.D. Va. 1999). There, the court found "no justification for disallowing the relevant contractual provision simply because an explicit federal statute of limitations exists when that statute does not prohibit such shortening, either explicitly or by clear implication." Id. at 523 (reasoning that a "controlling statute to the contrary" cannot mean any federal statute of limitations but "must sensibly be understood to mean a federal or state statute that explicitly proscribes such contractual limitations").
The district court noted that "ordinarily, civil actions under the Copyright Act are subject to a three-year statute of limitations" in 17 U.S.C. § 507(b). Entous, 151 F. Supp. 2d at 1154-1155. On summary judgment, the defendant argued that a six-month limitations period contained in the parties' contract governed and that the plaintiff's claims, filed outside the six-month period, were barred. Id. The plaintiff, who also asserted a breach of contract claim, did not dispute the validity or applicability of the contractual six-month limitations period, but instead argued that the Copyright Act, not the contract, provides the governing accrual rule. Id. at 1155. The district court therefore applied the shorter six month limitations period to the plaintiff's claims and focused its analysis on determining which accrual rule applied to the plaintiff's claims. Id. at 1155-1156.
Similarly, parties may contract for an accrual method that differs from a statute's general provisions so long as there is nothing in the "policy or object of such statutes which forbids the parties to an agreement to provide a shorter period." See, e.g., Entous, 151 F. Supp. 2d at 1156 ("Plaintiff makes the unwarranted assumption that copyright law accrual principles should simply displace the express rule of accrual contained in the [contract]. However, Plaintiff provides no case authority and the Court has found none that the Copyright Act forbids parties from varying the accrual by agreement.") (citing cases). "The rationale for enforcing contractual accrual rules . . . center[s] on 'protecting individuals' efforts to structure their own affairs through contract.'" Id. (upholding enforceability of parties' contracted broad accrual rule obligating plaintiffs to assert claims when they are chargeable with knowledge of intended copyright infringements and before such infringements actually occur).
In this case, Nafra contends that the Copyright Act forbids private parties from restricting its general provisions that would undermine the act's purpose: a uniform, national system for the creation and protection of copyrights. (Pl. Opp. Home Depot Mot. Dismiss, Doc. 30, at 11.) However, Nafra has failed to cite to any statutory provision of the Copyright Act that either expressly or implicitly prohibits parties from shortening the three-year statute of limitations. Nor has Nafra cited to a single court that has held that the Copyright Act's three-year statute of limitations provision preempts a contractual limitations provision such as the one at issue here. That Congress sought to establish uniformity when it enacted the Copyright Act does not reasonably lead to the conclusion that its provisions prohibit parties from contractually shortening the statute of limitations period or establishing an alternative accrual rule. Furthermore, the one-year limitations provision is not unreasonable. See Northlake Reg'l Med. Ctr., 160 F.3d at 1304 (finding 90-day limitations period prescribed by employee benefit plan was not unreasonably short); Farris v. Celebrity Cruises, Inc., 487 F. App'x at 544 (indicating that one-year contractual limitations period was not unreasonable); MFS Int'l, Inc., 50 F. Supp. 2d at 523 (finding that shortened contractual imitations period of one year was clearly reasonable).
Nafra does not even argue that § 301(a) - the preemption provision of the Copyright Act - implicitly prohibits contractual shortening of the statute of limitations. Section 301(a) of the Copyright Act provides that "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright . . . in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright . . . are governed exclusively by this title." 17 U.S.C. § 301(a). "The exclusive rights under the Copyright Act include the right to reproduce the copyrighted work, to prepare derivative works, and to distribute copies to the public." Lipscher v. LRP Publ'ns., Inc., 266 F.3d 1305, 1311, 1312-1318 (11th Cir. 2001) (finding plaintiff's deceptive practices and unfair competition claims, "clearly" seeking to vindicate only copyright rights, were preempted, but holding the breach of contract claim was not preempted because it sought to enforce rights created by contract). The contractual limitation provision at issue here is not an exclusive right under the Copyright Act and is therefore not subject to preemption under 17 U.S.C. § 301(a). See also ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir. 1996) ("A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create 'exclusive rights.' . . . Although Congress possesses power to preempt even the enforcement of contracts about intellectual property . . . courts usually read preemption clauses to leave private contracts unaffected.") (adopted by Lipscher, 266 F.3d at 1318).
Accordingly, as the Copyright Act does not prohibit the contractual rights of the parties to shorten the limitations period and Nafra failed to bring its claims against Home Depot within one year of discovering the alleged infringement, the Court GRANTS Home Depot's Motion to Dismiss [Doc. 24].
Here, although the contract provides that plaintiff is required to bring its claim within one year of the occurrence of the event giving rise to the dispute, Home Depot takes a more liberal approach in its motion asserting that Plaintiff was required to bring its claim within one year of discovering the infringing acts. The Eleventh Circuit has not squarely addressed the issue of when an infringement claim accrues. Compare Calhoun v. Lillenas Publ'g, 298 F.3d 1228, 1236 (11th Cir.2002) ("The statute of limitations for copyright infringement claims is triggered by violations, that is actual infringements. The limitations period may be triggered when a plaintiff knows or, in the exercise of reasonable diligence, should have known about an infringement.") with United States v. Shabazz, 724 F.2d 1536, 1540 (11th Cir.1984) ("In copyright infringement actions, the period of limitations begins on the date of the last infringing act.").
B. Candice L. Anderson's Motion to Dismiss: Corporate Veil
Ms. Anderson seeks to dismiss Nafra's claims against her because they were not pled with sufficient specificity and that Plaintiff's Complaint is insufficient to pierce the corporate veil. (Defs. Mot. Dismiss, Doc. 27, at 4-6.) In response, Nafra contends that Ms. Anderson's corporate position and marriage are enough to survive a Motion to Dismiss Plaintiff's infringement claim. (Pl. Opp. Defs. Mot. Dismiss, Doc. 31, at 3.) Plaintiff offered no argument to support its claim of unjust enrichment against Ms. Anderson in her individual capacity. Therefore, Defendant Candice Anderson's Motion to Dismiss the unjust enrichment claim is deemed unopposed. See N.D. Ga. R. 7.1B ("Failure to file a response shall indicate that there is no opposition to the motion."). Moreover, under Georgia law, "an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or cooperated therein." Ceasar v. Shelton Land Co., 596 S.E.2d 755, 756 (2004) (citing Cherry v. Ward, 420 S.E.2d 763 (1992) and Brown v. Rentz, 441 S.E.2d 876 (1994)). As Plaintiff has made no attempt to establish Ms. Anderson's individual liability on its unjust enrichment claim with allegations sufficient to pierce the corporate veil, the Court GRANTS Ms. Anderson's Motion to Dismiss the unjust enrichment claim [Doc. 27].
With respect to its copyright claim, Nafra correctly asserts that corporate veil principles do not apply and that persons can be held vicariously liable for copyright infringement. To subject a corporate defendant to individual liability for copyright infringement, a party must show that the defendant had the ability to supervise the copyright-infringing-activity and had some financial stake in it. S. Bell Tel. & Tel. v. Associated Tel. Directory Publishers, 756 F.2d 801, 811 (11th Cir. 1985).
Georgia corporate law principles do not apply to a federal copyright claim. See Faulkner Press, L.L.C. v. Class Notes, L.L.C., 2009 WL 5879033, *1(N.D. Fl. March 31, 2009) ("[a]s to Plaintiff's federal copyright claims, however, state law does not control.") Ms. Anderson properly identified Iqbal as the governing standard for motions to dismiss, but her later arguments about the corporate veil are misplaced with regards to the copyright claim. (Defs. Mot. Dismiss, Doc. 27, at 6 (citing Georgia law).) Accordingly, the Court addresses her Motion to Dismiss under Iqbal without addressing the corporate veil arguments.
Even assuming, arguendo, that her position in JKA alone establishes her financial interest, her position does not automatically establish her ability to supervise her husband's activities and Nafra does not allege a single fact which would warrant such an assumption. For example, Nafra's Complaint fails to allege that Ms. Anderson directly participated in the administration or operation of the business of JKA, much less that she directed, controlled, ratified, participated in, or was the moving force behind the alleged trademark infringement. Cf. E Beats Music v. Andrews, 433 F. Supp. 2d 1322, 1326 (M.D. Ga. 2006) (finding sole owner of nightclub vicariously liable for an employee's copyright-infringing music selection where the owner hired managers, signed the liquor license, arranged for the corporation's lease, testified that he was in the club everyday, and therefore had ultimate authority over all activities at the nightclub); Chi-Boy Music v. Towne Tavern, Inc., 779 F. Supp. 527, 530 (N.D. Al. 1991) (explaining, under similar facts as E. Beats, that "the imposition of vicarious liability for copyright infringement on a controlling individual is premised on the belief that such a person is in a position to control the conduct of the "primary" infringer).
Nafra's claims against Ms. Anderson do not rely on any factual predicates. (See Compl., Doc. 22, ¶¶ 42, 43, 52, 53, 54, and 56.) Rather, the Complaint is based solely on legal conclusions and is nothing more than "a threadbare recitation of the elements of cause of action." Iqbal, 556 U.S. at 678. Accordingly, the Court GRANTS Ms. Anderson's Motion to Dismiss Nafra's copyright claim [Doc. 27] against her individually.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Home Depot's Motion to Dismiss [Doc. 24] and Defendant Candice Anderson's Motion to Dismiss [Doc. 27]. Plaintiff's claim for intentional interference with business relations is DISMISSED WITHOUT PREJUDICE pursuant to FED. R. CIV. P. 41 (a)(2).
Plaintiff's claims for copyright infringement and unjust enrichment against Defendants Jeff Anderson and JKA, Inc. remain pending. --------
IT IS SO ORDERED this 29th day of August, 2013.
/s/ _________
Amy Totenberg
United States District Judge