Case 1:23-cv-22380-JEM Document 8 Entered on FLSD Docket 08/04/2023 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
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`CASE NO: 1:23-cv-22380-JEM
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`Plaintiff,
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`LICKERISH, INC.,
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`v.
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`MEMORABILIA FOR LESS, LLC,
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`Defendants.
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`____________________________________/
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`DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
`AND MEMORANDUM OF LAW
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`Defendant MEMORABILIA FOR LESS, LLC (“MEMORABILIA”), by and through its
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`undersigned counsel, and pursuant to Federal Rule of Civil Procedure 12(b)(6), hereby files this
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`Motion to Dismiss Plaintiff’s Complaint And Memorandum of Law. In support thereof,
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`Defendant respectfully states as follows:
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`1.
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`The Complaint fails to state a claim upon which relief can be granted for willful
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`copyright infringement.
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`2.
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`The Complaint fails to state a claim upon which relief can be granted for
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`injunctive relief.
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`MEMORANDUM OF LAW
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`Federal Rule of Civil Procedure 12(b)(6) provides in pertinent part:
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`(b) How to Present Defenses. Every defense to a claim for relief in any
`pleading must be asserted in the responsive pleading if one is required.
`But a party may assert the following defenses by motion:
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`(6) failure to state a claim upon which relief can be granted;
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`Case 1:23-cv-22380-JEM Document 8 Entered on FLSD Docket 08/04/2023 Page 2 of 5
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`Fed. R. Civ. P. 12(b)(6).
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`Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant moves to Dismiss
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`Plaintiff’s Complaint on the grounds that (1) it fails to state a claim upon which relief can be
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`granted for willful copyright infringement and (2) it fails to state a claim upon which relief can
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`be granted for injunctive relief.
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`A. The Plaintiff fails to state a claim upon which relief can be granted for willful
`infringement.
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`Plaintiff alleges that Defendant willfully infringed on copyrights of the Plaintiff. The
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`other allegations of the Complaint, and it’s attachments, are not only insufficient to state a claim
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`upon which relief can be granted, but they are actually inconsistent with such allegation.
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`Specifically, Plaintiff alleges in Paragraph 42 that “Defendant’s infringement was willful
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`as it acted with actual knowledge or reckless disregard for whether its conduct infringed upon
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`Plaintiff’s copyright.” (Complaint, ¶42) However, Plaintiff alleges in Paragraph 32 that it
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`discovered Defendant’s unauthorized use/display of the subject photographs in July of 2022. It
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`is obvious that Defendant must have obtained the subject photographs before that time. Indeed,
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`in Paragraph 27 of the Complaint, Plaintiff attached screenshots of Defendant’s website showing
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`the photographs of Bella Thorne, Caity Lots and Austin Butler, the photos at issue here.
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`Looking at the date on which each screenshot was taken in the lower left of each screenshot, one
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`can see that the screenshots were taken on June 16, 2022. Hence, Defendant must have obtained
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`such photographs at least as early as June 16, 2022. Yet, from the allegations of the Complaint
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`itself, and Exhibits “A”, “B” and “C,” as of June 16, 2022, none of the subject photographs had
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`been registered by the Plaintiff with the Copyright Office so as to give notice to the public, and
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`specifically the Defendant, that such photographs were copyrighted.
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`In fact, based on the allegations of the Complaint, the photograph of Bella Thorne was
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`Case 1:23-cv-22380-JEM Document 8 Entered on FLSD Docket 08/04/2023 Page 3 of 5
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`registered on April 26, 2023. (Complaint, ¶13)(Exhibit “A”) Defendant had obtained this
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`photograph more than ten (10) months before such registration and notice of copyright.
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`Similarly, the photograph of Caity Lots was registered on November 23, 2022. (Complaint,
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`¶16)(Exhibit “B”) Defendant had obtained this photograph more than five (5) months before
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`such registration and notice of copyright. Finally, the photograph of Austin Butler was
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`registered on November 23, 2022. (Complaint, ¶21)(Exhibit “C”) Defendant had obtained this
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`photograph more than five (5) months before such registration and notice of copyright.
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`Defendant could not have known that Plaintiff had registered the photographs with the Copyright
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`Office at the time that it obtained the photographs and published them on its website.
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`Plaintiff further alleges that after its copyright registration of the photographs, Defendant
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`published the photographs on its website, webpage and/or social media. (Complaint ¶27) As
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`support therefor, Plaintiff shows the previously discussed screenshots. Once again, the
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`allegations of the Complaint are inconsistent with the screenshots attached. As stated above, the
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`screenshots of Defendants website were taken on June 16, 2022, more than five (5) to ten (10)
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`months before the photographs were registered by the Plaintiff.
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`The Complaint should also be dismissed because the allegations of the Complaint are
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`inconsistent with each other and the exhibits in and attached to the Complaint. The allegations
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`cannot be reconciled with the exhibits attached thereto thus creating a pleading repugnancy
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`rendering the allegations and claims a nullity as shown above.
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`Hence, a material inconsistency exists rendering the Complaint objectionable. See
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`Hillcrest Pacific Corp. v. Yamamura, 727 So. Wd 1053, 1056 (Fla. 4th DCA 1999) (quoting
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`Harry Pepper & Assoc., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971)(“ [if there[
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`is an inconsistency between the general allegations of material facts in the . . . complaint and the
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`Case 1:23-cv-22380-JEM Document 8 Entered on FLSD Docket 08/04/2023 Page 4 of 5
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`specific facts revealed by the exhibit [attached or referred to in the complaint] . . . they have an
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`effect of neutralizing each allegation as against the other, thus rendering the pleading
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`objectionable.”) Accordingly, the allegations of the Complaint are insufficient to state a claim
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`upon which relief can be granted for willful copyright infringement and the Complaint should be
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`dismissed as a matter of law.
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`B. The Plaintiff fails to state a claim upon which relief can be granted for injunctive
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`relief.
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`Plaintiff makes a demand for injunctive relief. Plaintiff has failed to make any allegation
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`regarding its demand for injunctive relief, or alleging any of the elements required to state a
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`claim upon which relief can be granted for injunctive relief. Accordingly, the allegations of the
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`Complaint are insufficient to state a claim upon which relief can be granted for injunctive relief
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`and the Complaint should be dismissed as a matter of law.
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`WHEREFORE, Defendant MEMORABILIA FOR LESS, LLC respectfully requests that
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`this Court enter an Order dismissing the Complaint and granting it such other and further relief
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`as this Court deems just and proper.
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`Respectfully submitted,
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`s/ A. Francisco Areces
`A. Francisco Areces, Esq. (Florida Bar Number: 0724017)
`Attorney E-mail address: fareces@areceslaw.com
`ARECES RODRIGUEZ, P.A
`2525 Ponce de Leon Boulevard, Suite 300
`Coral Gables, Florida 33134
`Telephone: (305) 300-8888
`Attorneys for Defendant Memorabilia For Less, LLC
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 4th day of August, 2023, I electronically filed the foregoing
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`document with the Clerk of the Court using CM/ECF, and that a true and correct copy of this
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`Case 1:23-cv-22380-JEM Document 8 Entered on FLSD Docket 08/04/2023 Page 5 of 5
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`document is being served via transmission of Notice of Electronic Filing generated by CM/ECF
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`upon: Meghan Medacier, Esq., meghan@copycatlegal.com, COPYCAT LEGAL PLLC, 3111 N.
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`University Dr., Suite 301, Coral Springs, FL 33065.
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`s/ A. Francisco Areces, Esq.
`ARECES RODRIGUEZ, P.A.
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