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Move Merch, LLC v. Amaru/AWA Merchandising, Inc.

United States District Court, Eastern District of Missouri, Eastern Division

March 10, 2015

MOVE MERCH, LLC, Plaintiff,
v.
AMARU/AWA MERCHANDISING, INC., AMARU ENTERTAINMENT, INC., and DECOSTA MARKETING, INC., Defendant.

MEMORANDUM AND ORDER

CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.

This matter is before the Court on defendant DeCosta Marketing, Inc.'s ("DeCosta") motion to dismiss plaintiff Move Merch, LLC's complaint pursuant to Rule 12(b)(6). Plaintiff opposes the motion. For the following reasons, DeCosta's motion to dismiss will be denied.

I. Background

This case arises out of the licensing and online sale of t-shirts, fleece tops, and headwear bearing the intellectual property of the late entertainer Tupac Shakur. According to the complaint, after Mr. Shakur's death, his mother Afeni Shakur founded defendant Amaru Entertainment, Inc., which exclusively owns the intellectual property rights of the late entertainer. Ms. Shakur's company entered into a joint venture with an individual named Rick Barlowe, and the two formed AWA Merchandising, Inc. AWA Merchandising Inc. obtained an exclusive license of the late Tupac Shakur's intellectual property rights for the purpose of furthering the entertainer's legacy. Amaru Entertainment, Inc. and AWA Merchandising, Inc. (the "Amaru defendants") then contracted with a marketing company, defendant DeCosta. DeCosta was to develop and maintain a Tupac Shakur personalized website and a corresponding Facebook page.

Plaintiff Move Merch, LLC is an entertainment merchandising company operating out of Overland, Missouri. Plaintiff "creates, produces, and distributes high quality merchandise on behalf of its clients." (Compl. ¶ 18). Plaintiff entered into an agreement with "Amaru/AWA Merchandising c/o DECOSTA Marketing, Inc." granting plaintiff the exclusive right to manufacture and sell Tupac Shakur merchandise online through the Tupac Shakur website and the corresponding Facebook page. Plaintiff sold its merchandise online through these websites for nearly two years, before defendants terminated the agreement.

In its complaint, plaintiff alleges defendants breached their online sales agreement by terminating the agreement. Plaintiff also alleges defendants were unjustly enriched by the $75, 000 advance plaintiff paid defendants pursuant to the agreement.

In response to the complaint, DeCosta filed the instant motion to dismiss for failure to state a claim. DeCosta states plaintiff has not pled a cognizable claim against it because DeCosta was the agent of the Amaru defendants, and an agent cannot be held liable for acts performed within the course and scope of the agency relationship.

II. Legal Standard

On a motion to dismiss, the Court accepts as true the factual allegations contained in the complaint and grants the plaintiff the benefit of all reasonable inferences that can be drawn from those allegations. See Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th Cir. 2010). "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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

"While courts primarily consider the allegations in the complaint in determining whether to grant a Rule 12(b)(6) motion, courts additionally consider ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned;' without converting the motion into one for summary judgment. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)." Miller v. Redwood Toxicology Lab, Inc., 688 F.3d 928, 931 & n.3 (8th Cir. 2012); see also Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 853 (8th Cir. 2014) (holding that the plaintiff stated a claim of breach of contract because the essence of the claim was apparent from the complaint and attached document).

III. Discussion

Plaintiff's complaint against DeCosta is brought in two counts: breach of contract (Count I. and unjust enrichment (Count II). The Court will address each Count separately.

A. Breach of Contract (Count I)

The contract at issue, the Online Sales License Agreement ("Online Sales Agreement"), is attached to the complaint as exhibit 1. Plaintiff alleges that it contracted "with Amaru/AWA in care of DeCosta marketing" for online sales. (Compl. at ¶ 19). Plaintiff alleges on information and belief that DeCosta "was granted authority to hire third-party vendors on behalf of Amaru/AWA to . . . sell Tupac Shakur licensed products through the Website. . . ." (Compl. at ¶ 17). ...


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