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Yeager v. Bowlin

August 5, 2008

GENERAL CHARLES "CHUCK" YEAGER, (RET.) AND GENERAL CHUCK YEAGER FOUNDATION, PLAINTIFFS,
v.
CONNIE BOWLIN, ED BOWLIN, DAVID MCFARLAND, AVIATION AUTOGRAPHS, A NON-INCORPORATED GEORGIA BUSINESS ENTITY, BOWLIN & ASSOCIATES, INC., A GEORGIA CORPORATION, SPALDING SERVICES, INC., A GEORGIA CORPORATION, INTERNATIONAL ASSOCIATION OF EAGLES, INC., AN ALABAMA CORPORATION, AND DOES 1 TO 100, INCLUSIVE, DEFENDANTS.



ORDER RE: MOTION TO DISMISS

Plaintiffs General Charles "Chuck" Yeager, (Ret.) and the General Chuck Yeager Foundation ("Foundation") filed this lawsuit alleging various claims against defendants Connie Bowlin, Ed Bowlin, David McFarland, Aviation Autographs, Bowlin and Associates, Inc., Spalding Services, Inc., and International Association of Eagles, Inc. Connie Bowlin, Ed Bowlin, Aviation Autographs, and Bowlin and Associates, Inc.*fn1 now move to dismiss plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted and Rule 9(b) for failure to plead fraud with specificity. Defendants also move for a more definite statement pursuant to Rule 12(e).

I. Factual and Legal Background

General Yeager is a well-known figure from American aviation history and has a "valuable identity and property interest arising out of his accomplishments . . . ." (Compl. ¶¶ 2, 6-8.) Because of his fame, he "charges, and receives, a fee for the commercial use of his name, image, and/or identity, and additionally charges for any endorsement of products or companies. [He] also charges a fee for providing his autograph in commercial or business settings." (Id. at ¶ 9.) The Foundation is an organization dedicated to teaching and illustrating the ideals of Yeager. (Id. at ¶ 10.) It receives funding through Yeager's appearances and marketing efforts. (Id.)

Defendant Aviation Autographs is a Georgia business that obtains and sells autographed materials. (Id. at ¶ 11.) Aviation Autographs sells these materials through phone orders and on the internet. (Id.) Defendant Bowlin and Associates, Inc. is in the business of aviation sales and consulting. (Id. at ¶ 15.) Defendants Connie and Ed Bowlin, residents of the State of Georgia, are the owners of Aviation Autographs and Bowlin and Associates, Inc. (Id. at ¶¶ 12-13, 15.)

Aviation Autograph's website allegedly features prints, models, books, and other merchandise bearing or utilizing plaintiff's name, likeness, and identity "in an attempt to capitalize and utilize [p]laintiff's fame and reputation to bolster, aid and increase [d]efendants' sales of aviation memorabilia." (Id. at ¶¶ 53, 57.) Plaintiffs insist they have not consented to the use of Yeager's name in connection with the sale of these products and that Yeager has not been compensated for this use. (Id. at ¶ 55.) Furthermore, statements on the website are allegedly false and misleading because they suggest that Yeager and the Bowlins maintain a current friendship. (Id. at ¶ 64.) Yeager further asserts that he has "withdrawn permission for the [d]efendants to sell any prints, lithographs or memorabilia described in [the] Complaint." (Id. at ¶¶ 26, 43, 45, 50.)

Yeager purportedly attended various events in or before 2003 without charging his usual appearance fees because the Bowlins or unspecified defendants fraudulently represented to him that the proceeds from such events would go toward charitable purposes. (Id. at ¶ 111; see also id. at ¶¶ 24, 30, 32, 36, 38, 112(b)-(c), 121(a)-(b)) (regarding the "Leiston Legends" and "Tribute to Aces" Symposium).) Yeager also purportedly signed hundreds of lithographs without charging his usual autographing fees because the Bowlins or unspecified defendants fraudulently represented to him that the proceeds from the sales of such prints would go toward charitable purposes. (Id. at ¶¶ 19-20, 22, 112(a) (regarding the "Gathering of Eagles" events); id. at ¶¶ 25, 30, 32, 34, 36, 38, 112(b)-(c), 121(a)-(b) (regarding the "Leiston Legends" and "Tribute to Aces" Symposium).) Allegedly, none of the proceeds from the sales of the lithographs or generated by the events have gone toward the charitable purposes as represented. (Id. at ¶¶ 112(a)-(c).)

Furthermore, Yeager also allegedly entered into various oral agreements with the Bowlins in 2000 and 2003.*fn2 The agreements relate to different sets of lithographs, but all contain substantially similar promises. (See id. at ¶ 24 (alleging terms of an August 2003 agreement); id. at ¶ 26 (alleging terms of a 2000 agreement); id. at ¶ 32 (alleging terms of an August 2003 agreement regarding the "Tribute to Aces" Symposium); id. at ¶ 41 (alleging terms of a 2000 agreement regarding the "Hey Pard" prints); id. at ¶¶ 45, 112(d) (alleging terms of a 2000 agreement regarding the "F-15" prints); id. at ¶¶ 50, 112(e) (alleging terms of a 2000 agreement regarding the "First Day" covers); id. at ¶¶ 112(c), 121(a) (alleging terms of agreement regarding the "Leiston Legends" lithographs).)

In these agreements, Yeager allegedly authorized the Bowlins to sell signed prints in exchange for a percentage of the proceeds, and unsigned prints in exchange for a royalty payment. (Id. at ¶¶ 26, 45, 50, 112(d)-(e).) These agreements also provided that Yeager would retain one-third of the prints for his own use. (Id. at ¶¶ 24, 32, 47, 112(c), 121(a).) Furthermore, as to each agreement, Yeager "retained full and sole discretion to set or alter the terms upon which any of the lithographs, signed or unsigned, might be offered for sale." (Id. at ¶¶ 24, 32, 41, 45, 50.) Finally, if an agreement required Yeager to travel, it also provided that he would be reimbursed for his first class travel and hotel expenses. (Id. at ¶¶ 26, 121(a).)

Notwithstanding these agreements, defendants allegedly did not consult with Yeager in setting the sales prices for the prints nor did they provide him with his promised one-third of the prints. (Id. at ¶¶ 27, 47, 112(a).) Furthermore, the Bowlins have not paid Yeager his share of the sale proceeds or royalties and have not fully reimbursed him for his travel and lodging expenses. (Id. at ¶¶ 29, 39, 43, 112(c)-(e), 121(a), 121(c)-(d).)

Plaintiffs commenced this lawsuit on January 14, 2008 asserting nine claims against defendants, including: 1) breach of the California common law right to privacy/right to control publicity and likeness; 2) violation of California Civil Code section 3344 (statutory right of publicity); 3) violation of the Lanham Act, 15 U.S.C. § 1125(a), for false endorsement; 4) violation of the California Business and Professions Code section 17200 (unfair business practices); 5) violation of the California False Advertising Act, California Business and Professions Code section 17500; 6) fraud; 7) breach of oral contract; 8) unjust enrichment; and 9) conspiracy.

II. Discussion

On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984). To survive a motion to dismiss, a plaintiff needs to plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). Dismissal is appropriate, however, where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988); see also Conley v. Gibson, 355 U.S. 41, 47 (1957) (complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests"), abrogated on other grounds by Twombly, 127 S.Ct. at 1968. "However, the court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

When ruling on a motion to dismiss, the court generally may not consider materials other than the facts alleged in the complaint and documents that are made a part of the complaint. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996); Branch v. Tunne11, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). A court may, however, take judicial notice of undisputed facts that are contained in extrinsic materials. Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001).

Defendants request this court to take judicial notice of various documents filed in the cases of Susan F. Yeager v. Victoria D'Angelo, Nevada County Superior Court Case No. 68834, (Defs.' Req. for Judicial Notice in Supp. of Mot. to Dismiss Exs. A-D), and General Charles E. "Chuck" Yeager v. Susan Yeager, United States District Court, Eastern District of California, Case No. 2:06-CV-01196-JAM-EFB. (Id. Exs. E-F.) Defendants do not "request judicial notice of the truth of the substantive content of these pleadings or of the findings made by the courts in those proceedings." (Id. at 3:8-9.) Instead, they request judicial notice "of the fact and content of the[] pleadings as [they] relate to the notice that [p]laintiffs had of their potential claims," ...


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