Case 1:22-cv-22972-RNS Document 16 Entered on FLSD Docket 10/12/2022 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Case No. 22-cv-22972
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`Plaintiff,
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`CURTIS JACKSON, III p/k/a 50 CENT
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`
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`v.
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`ANGELA KOGAN and
`PERFECTION PLASTIC SURGERY, INC.,
`d/b/a PERFECTION PLASTIC SURGERY & MEDSPA,
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`Defendants.
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`__________________________________________________/
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`DEFENDANTS’ MOTION TO DISMISS
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`Defendants, Angela Kogan And Perfection Plastic Surgery, Inc., D/B/A Perfection Plastic
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`Surgery & MedSpa (each individually, a “Defendant,” and collectively, “Defendants”), by and
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`through undersigned counsel, hereby file this Motion to Dismiss Plaintiff’s, Curtis Jackson, III
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`p/k/a 50 Cent (“Plaintiff”), Complaint, and, in support thereof, state as follows:
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`OVERVIEW
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`1.
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`Plaintiff filed his Complaint on September 16, 2022. Therein, Plaintiff alleges the
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`following causes of action: (i) Count I (Right of Publicity – Unauthorized Misappropriation of
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`Name/Likeness Pursuant to Fla. Stat. §540.08); (ii) Count II (Common Law Invasion of Privacy);
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`(iii) Count III (Violation of the Lanham Act, 15 U.S.C. §1125(a): False Endorsement); (iv) Count
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`IV (Violation of the Lanham Act, 15 U.S.C. §1125(a): False Advertising); (v) Count V
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`(Conversion); and (vi) Count VI (Unjust Enrichment).
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`2.
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`Plaintiff’s Complaint fails to state a cause of action for which relief may be granted.
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`For such reasons, as more fully explained below, Plaintiff’s Complaint must be dismissed against
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`Defendants.
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`ARGUMENT
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`A. Legal Standard
`A motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) should be
`granted when it appears that a plaintiff can prove no set of facts in support of his claim that would
`entitle him to relief. See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992). A court
`considering a Rule 12(b)(6) motion generally is limited to the facts contained in the complaint and
`attached exhibits. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009).
`Notwithstanding, the Court has discretion to consider matters outside of the pleadings in a Fed. R.
`Civ. P. 12(b)(6) motion to dismiss for the purpose of converting such motion into a motion for
`summary judgment. See Fed. R. Civ. P. 12(b); see also Trustmark Ins. Co. v. ESLU, Inc. 299 F.3d
`1265, 1267 (11th Cir.2002); provided when such conversion occurs, the adverse party is “given
`express, ten-day notice of the summary judgment rules, of his right to file affidavits or other
`material in opposition to the motion, and of the consequences of default.” Griffith v. Wainwright,
`772 F.2d 822, 825 (11th Cir.1985).
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`In order to state a claim for relief, the pleading must contain "a short and plain statement
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`of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The U.S. Supreme
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`Court explained that the purpose of the rule is to "give the defendant fair notice of what the
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`plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
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`While a court is required to accept as true the allegations contained in the complaint when
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`considering a Rule 12 motion, courts “are not bound to accept as true a legal conclusion couched
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`as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009). Factual allegations must contain more than "labels and
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`conclusions;" a formulaic recitation of the elements of a cause will not do." Id. (citing Papasan v.
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`Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief
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`above the speculative level." Id. (citations omitted). "Facts that are 'merely consistent with' the
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`plaintiff's legal theory will not suffice when, 'without some further factual enhancement [they] stop
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`short of the line between possibility and plausibility of "entitle[ment] to relief."'" Weissman v.
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`National Association of Securities Dealers, Inc., 500 F.3d 1293, 1310 (11th Cir. 2007) (quoting
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`Twombly, 127 S. Ct. at 1966) (quoting DM Research, Inc. v. College of American Pathologists,
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`170 F. 3d 53, 56 (1st Cir. 1999)).
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`To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
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`as true, to “state a claim to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at
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`570). Furthermore, as noted by the Supreme Court, the pleading party must "nudge[] [their] claims
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`across the line from conceivable to plausible[; otherwise, their claims] must be dismissed.”
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`Twombly, 127 S. Ct. at 1974.
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`B. Plaintiff’s Complaint Fails to State a Claim For Relief Against Defendants.
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`Each of the six counts alleged by Plaintiff against Defendants fails to establish a claim for
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`which relief may be granted. Particularly, the entirety of Plaintiff’s Complaint is based upon the
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`assertion that: (i) Defendants did not have the authority to use Plaintiff’s name and/or image
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`without Plaintiff’s prior consent, and (ii) at no point in time has Plaintiff ever been a client of
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`Defendants, including, without limitation, for the purpose of obtaining plastic surgery services or
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`penile enhancement surgery.
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`However, it is clear from the Photo itself that the taking thereof was not a random
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`happenstance or unsolicited occasion. The content of the Photo shows Plaintiff in Defendants’
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`office, next to Defendant in her role as a businesswoman/aesthetician (i.e. in professional attire).
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`Thus, it is disingenuous for Plaintiff to claim or allege that Plaintiff – who wishes for the Court to
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`believe randomly stumbled into a medspa without purpose or specific intent – agreed to take the
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`Photo under the “sole impression that [Defendant] was a fan seeking the photograph for her private
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`and personal enjoyment.” See D.E. 1, ¶ 65. The Photo is not representative of Plaintiff running
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`into a random fan in the middle of the street; rather, it specifically highlights Plaintiff in a specific
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`situation, for a specific purpose, in exchange of a specific transaction, each as further explained
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`below.
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`In sum, Plaintiff’s claims suffer for the following reasons: (1) Plaintiff was, in fact, a client
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`of Defendants, as evidenced by the Exhibits detailing Defendants’ records and other forms of
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`documentation1, and Affidavit attached hereto; (2) in exchange for medspa services, Plaintiff
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`agreed to take the Photo and allow it to be shared by Defendants on Defendants’ social media
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`profiles, and (3) at no point in time have Defendants ever stated or implied that Plaintiff received
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`plastic surgery services or penile enhancement surgery from Defendants.
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`i.
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`Count One – Right of Publicity – Unauthorized Misappropriation of
`Name/Likeness Pursuant to Fla. Stat. §540.08
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`Fla. Stat. §540.08 prohibits the unauthorized publication of a person’s name or likeness.
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`Specifically, the statute states:
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`No person shall publish, print, display or otherwise publicly use for purposes of
`trade or for any commercial or advertising purpose the name, portrait, photograph,
`or other likeness of any natural person without the express written or oral consent
`to such use given by ... [s]uch person
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`1 Plaintiff’s Complaint cites to Defendants’ status as a provider of health care services and ability to know
`whether an individual was treated by them based on “records and other forms of documentation” on
`numerous occasions. See e.g., D.E. 1, ¶¶4, 100
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`In order to state a cause of action for violation of §540.08, the plaintiff must properly allege that
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`his or her name or likeness was used to directly promote a commercial product or service. See
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`Fuentes v. Mega Media Holdings, Inc., 721 F. Supp. 2d 1255, 1258 (S.D. Fla. 2010). If such use
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`is not made for any trade, commercial, or advertising purpose, then a claim for unauthorized
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`misappropriation cannot exist. See Valentine v. CBS, Inc., 698 F.2d 430, 433 (11th Cir.1983)
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`(recognizing that the proper interpretation of Fla. Stat. §540.08 requires the plaintiff to prove that
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`the defendants used a name or likeness to directly promote a product or service); Tyne v. Time
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`Warner Entm't Co., L.P., 204 F.Supp.2d 1338 (M.D.Fla.2002) (recognizing that Fla. Stat. §540.08
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`only prohibits the use of a name or image when such use directly promotes a commercial product
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`or service); Epic Metals Corp. v. CONDEC, Inc., 867 F. Supp. 1009, 1016 (M.D.Fla.1994)
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`(“Florida Statute §540.08 prevents the unauthorized use of a name or personality to directly
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`promote the product or service of the publisher.” ); National Football League v. The Alley, Inc.,
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`624 F. Supp. 6, 7 (S.D.Fla.1983) (“Section 540.08 of the Florida Statutes prohibit unconsented use
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`of an individual's name and likeness only when such directly promotes a commercial product or
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`service”); Loft v. Fuller, 408 So.2d 619, 622 (Fla. 4th DCA 1981) (“In our view, Section 540.08,
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`by prohibiting the use of one's name or likeness for trade, commercial, or advertising purposes, is
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`designed to prevent the unauthorized use of a name to directly promote the product or service of
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`the publisher”). As such, the initial issue presented is whether Defendants’ use of the Photo was
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`done to directly promote a commercial product or service.
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`The Photo shows Plaintiff standing with his arm around Defendant (with Defendant
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`dressed in professional attire), in the middle of Defendants’ office, and was posted on Defendants’
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`social media profiles with the caption, “Thank you @50cent for stopping by the number one med
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`spa @bh_perfection_medspa.” However, neither the Photo itself, nor the caption thereof, purports
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`to show use of the Photo in direct promotion with any commercial product or service (i.e. offered
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`medspa treatments, products, endorsement of plastic surgery services, endorsement of penile
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`enhancement services, etc.). Rather, the Photo is an innocuous capture of Plaintiff and Defendant
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`in Defendants’ office, with Defendants’ inclusion of a sentence containing pure puffery. However,
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`the Photo does not expressly or implicitly associate or attribute such claims to be the words of
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`Plaintiff.
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`Inclusion of one's name, likeness, portrait, or photograph in any type of publication does
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`not give immediate rise to a valid cause of action under §540.08. See Valentine v. C.B.S., Inc., 698
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`F.2d 430, 433 (11th Cir.1983) (upholding a decision to grant summary judgment against plaintiff,
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`who brought a claim under Florida Statute § 540.08 when Bob Dylan used her name in a song.
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`The Eleventh Circuit reasoned that because the defendants did not use her name to directly promote
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`a product or service, “use of a name is not harmful simply because it is included in a publication
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`sold for profit.”). The Court has issued numerous decisions in support of this notion. See, e.g.,
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`Lane, 242 F. Supp. 2d 1205 (M.D.Fla.2002); Tyne, 204 F. Supp. 2d 1338 (M.D.Fla.2002); Loft,
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`408 So. 2d 619 (Fla. 4th DCA 1981).
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`In Fuentes, the Southern District of Florida granted a motion to dismiss a claim under
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`§540.08 upon determination that the plaintiff’s name and likeness – which plaintiff claimed was
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`used by defendant without his consent – were not used for trade, commercial, or advertising
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`purposes, because the publication at issue – the Maria Elvira Live show – was a television program
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`intended to entertain and/or inform the public.
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`Similarly, not only is Plaintiff’s name and image not being used to directly promote any
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`service or product of Defendants (as, again, there are no endorsement statements attributable to
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`Plaintiff included or captioned in the Photo, nor does Defendants’ caption state that Plaintiff
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`received any services from Defendants), but Defendants’ sharing of the Photo was made solely for
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`entertainment purposes (i.e. to share on social media amongst Defendants’ followers). Defendants’
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`have never shared the Photo with any third party publication for the purpose of claiming Plaintiff
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`received plastic surgery services and/or obtained a penile enhancement procedure from Defendants
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`or expressly stating the Plaintiff endorsed such services. See Aff. Of Angela Kogan, ¶ 9-10. Any
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`allegation to the contrary is: (i) a legal conclusion, absent of factual support to support such claim,
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`and (ii) further problematic in that Plaintiff has wrongfully elected to apply the acts of a third party
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`onto Defendants.
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`Alternatively, even if the Court were to determine that Plaintiff’s name and image were
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`used to directly promote a product or service, such use was made with the prior consent of Plaintiff.
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`See Aff. Of Angela Kogan, ¶ 8. As shown via Exhibit A, attached hereto, Plaintiff’s girlfriend
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`visited Defendants’ office for the purpose of receiving free medspa services in exchange for
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`promoting Defendants’ business. Plaintiff joined his girlfriend on this visit, and also agreed to
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`receive free medspa services in exchange for promoting Defendants’ business via taking the Photo
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`and allowing it to be shared on Defendants’ social media profiles. Plaintiff’s approval of
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`Defendants’ use of the Photo is further evidenced by the fact Defendants have – over the course
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`of a two year span – shared the Photo on Defendants’ social media on multiple occasions without
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`incident or prior demand to cease and desist from Plaintiff. As Plaintiff’s consent constitutes
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`authorized use of the Photo to be shared by Defendants’ on Defendant’ social media profile,
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`coupled with the fact Plaintiff enjoyed a benefit via the receipt of free medspa services in exchange
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`for the Photo (see Aff. Of Angela Kogan, ¶ 8), Plaintiff is unable to assert a claim under §540.08.
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`Furthermore, as Defendants has never shared the Photo with any online publication for the purpose
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`claiming Plaintiff’s endorsement or promotion of Defendants’ services, (see Aff. Of Angela
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`Kogan, ¶¶9-10), Defendants cannot be held responsible for the acts of third parties for which
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`Defendants have no control or influence over.
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`ii.
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`Count Two – Common Law Invasion of Privacy
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`Under Florida common law, the tort of invasion of privacy is divided into the following
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`categories: (1) intrusion into individual's physical solitude or seclusion; (2) public disclosure of
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`private facts; (3) portraying individual in false light in public eye; and (4) appropriation, i.e.
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`commercial exploitation of property value of one's name. See Fuentes, 721 F. Supp. 2d at 1260.
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`To prevail on the common law claim, Plaintiff must allege Defendants commercially used the
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`value of Plaintiff’s name for commercial, trade, or advertising purposes. See Almeida v.
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`Amazon.com, Inc., 456 F.3d 1316, 1320 n. 1 (11th Cir.2006) (finding that the statutory and
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`common law rights of publicity are “substantially identical”).
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`As the analysis for a common law invasion of privacy-misappropriation claim (which is
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`what Count II of Plaintiff’s Complaint purports to be, as it simply recites the same allegations
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`referenced in Count I of Plaintiff’s Complaint), it follows that Count II of Plaintiff’s Complaint
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`must be dismissed for the reasons relating to Count I – i.e. (1) the Photo does not depict use of
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`Plaintiff’s name or image for the purpose of directly promoting a product or service, (2) Defendants
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`shared the photo solely on Defendants’ social media profile for entertainment purposes, (3)
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`Defendants have never shared the Photo with any online publication for the purpose of claiming
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`or implying Plaintiff received plastic surgery services and/or obtained a penile enhancement
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`procedure from Defendants, and (4) alternatively, if the Court were determined that Defendants’
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`use of the Photo was done for commercial, trade, or advertising purposes, Plaintiff consented to
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`such use via his agreement to receive free medspa services in exchange for taking the Photo for
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`the purpose of allowing Defendants to share it on Defendants’ social media profiles.
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`Case 1:22-cv-22972-RNS Document 16 Entered on FLSD Docket 10/12/2022 Page 9 of 14
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`iii.
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`Count Three – Violation of the Lanham Act, 15 U.S.C. §1125(a): False
`Endorsement
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`§1125(a) of the Lanham Act states:
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`Any person who, on or in connection with any goods or services, or any
`container for goods, uses in commerce any word, term, name, symbol, or
`device, or any combination thereof, or any false designation of origin, false or
`misleading description of fact, or false or misleading representation of fact,
`which—(A) is likely to cause confusion, or to cause mistake, or to deceive as to
`the affiliation, connection, or association of such person with another person,
`or as to the origin, sponsorship, or approval of his or her goods, services, or
`commercial activities by another person…shall be liable in a civil action by any
`person who believes that he or she is or is likely to be damaged by such act
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`To state a claim for false endorsement under the Lanham Act, the plaintiff must show: (1)
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`that it had trademark rights in the mark or name at issue, and (2) that the other party adopted a
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`mark or name that was the same or confusingly similar to its mark, such that consumers were likely
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`to confuse the two. See Suntree Techs., Inc. v. Ecosense Int'l, Inc., 693 F.3d 1338, 1346 (11th Cir.
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`2012); see also Univ. of Ala. Bd. of Trs. v. New Life Art, Inc., 683 F.3d 1266, 1278 (11th Cir. 2012)
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`(“[W]e have never treated false endorsement and trademark infringement claims as distinct under
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`the Lanham Act.”).
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`As a general rule, a person’s image or likeness cannot function as a trademark. See
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`Lancaster v. Bottle Club, LLC, 2017 WL 3008434, at *6 (M.D. Fla. July 14, 2017) (citing ETW
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`Corp. v. Jierh Pub., Inc., 332 F.3d 915 (6th Cir. 2003)). To the extent Plaintiff is specifically
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`asserting that Defendants’ use of the Photo without permission allegedly confused the public
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`regarding Plaintiff’s association with Defendants’ goods and services, Plaintiff’s claim still fails.
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`Courts have recognized false endorsement claims under the Lanham Act where a
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`celebrity’s image or persona is used in association with a product so as to imply that the celebrity
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`endorses the product. Id. Because the Photo does not: (1) show Plaintiff’s name or image in the
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`promotion of any of Defendants’ products or services (as the caption simply thanks Plaintiff for
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`visiting Defendants’ office), or (2) contain any statements that may be attributed to Plaintiff as
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`endorsing Defendants’ plastic surgery services or penile enhancement surgery, there can be no
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`implied endorsement.
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`But even so, as the Photo was taken by Plaintiff in exchange for free medspa services with
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`the specific purpose of allowing Defendants to share on Defendants’ social media profiles and/or
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`promote Defendants’ business (see Aff. Of Angela Kogan, ¶ 8), such Photo was used by
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`Defendants as intended between the parties, and Plaintiff is thereby precluded from claiming
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`damages as a result. Plaintiff attempts to skirt past this agreement by claiming Defendants acted
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`inappropriately by sharing the Photo with third party publications and/or sharing statements
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`implying that Plaintiff was Defendants’ client for plastic surgery and penile enhancement
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`procedures. See D.E. 1, ¶ 92. However, (1) at no point in time has Defendants shared the Photo
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`with any online publication (see Aff. Of Angela Kogan, ¶ 9-10), and (2) in the Article that serves
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`as the impetus of this action (which Article was not drafted or composed by Defendants), at no
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`point therein does Defendant claim that Plaintiff has ever received plastic surgery or obtained a
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`penile enhancement procedure from Defendants, with the only reference to Plaintiff therein being
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`the following sentence: “Angela Kogan, who runs the Perfection Plastic Surgery And Medical Spa
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`in Miami, has an extensive clientele of celebrities, including FloRida, 50 Cent, Odell Beckham,
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`and more, that remain confidential.” As Plaintiff has been a client of Defendants (see Aff. Of
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`Angela Kogan, ¶ 7-8), such statement is neither a false nor misleading representation of fact. As a
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`result, Plaintiff is unable to sufficiently state a cause of action for false endorsement.
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`iv.
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`Count Four – Violation of the Lanham Act, 15 U.S.C. §1125(a): False
`Advertising
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`Furthermore, under the Lanham Act, to state a claim for false advertising, the plaintiff must
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`plead each of the following: (1) the defendant’s statements were false or misleading; (2) the
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`statements deceived, or had the capacity to deceive, consumers; (3) the deception had a material
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`effect on the consumers' purchasing decision; (4) the misrepresented service affects interstate
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`commerce; and (5) it has been, or likely will be, injured as a result of the false or misleading
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`statement. See Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes & of
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`Malta v. Fla. Priory of Knights Hospitallers of Sovereign Order of Saint John of Jerusalem,
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`Knights of Malta, Ecumenical Order, 702 F.3d 1279, 1294 (11th Cir. 2012).
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`As with Plaintiff’s claim for false endorsement, because: (1) neither the Photo, nor
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`Defendants’ sharing thereof, contain false or misleading statements (as Plaintiff has been a client
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`of Defendants for the purpose of receiving medspa services, see Aff. Of Angela Kogan, ¶ 7) or
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`purport to show or imply that Plaintiff received plastic surgery and/or sexual enhancement
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`procedures from Defendants, (2) at no point in time have Defendants ever shared the Photo or
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`other statements with any online publication for the purpose of expressing Plaintiff as an individual
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`who received plastic surgery services or obtained a penile enhancement procedure from
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`Defendants (see Aff. Of Angela Kogan, ¶ 9), and (3) the taking and use of the Photo was agreed
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`upon between the parties in exchange for Plaintiff’s receipt of free medspa services (Aff. Of
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`Angela Kogan, ¶ 8), it follows that Plaintiff is also unable to assert a claim for false advertising.
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`v.
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`Count Five – Conversion
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`According to Florida law, conversion is an “unauthorized act which deprives another of his
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`property permanently or for an indefinite period of time.” Fogade v. ENB Revocable Trust, 263
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`F.3d 1274, 1291 (11th Cir.2001). “Thus, in order to state a claim of conversion, one must allege
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`facts sufficient to show ownership of the subject property and facts that the other party wrongfully
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`asserted dominion over that property.” Indus. Park Dev. Corp. v. Am. Exp. Bank, FSB, 960 F.
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`Supp. 2d 1363, 1366 (M.D. Fla. 2013) (citing Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla.
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`4th DCA 2011)); see also Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F.Supp.2d
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`1271, 1294 (S.D.Fla.2001) (stating In Florida, to state a claim for conversion, a plaintiff must
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`allege an “(1) act of dominion wrongfully asserted; (2) over another's property; ... (3) inconsistent
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`with his ownership therein.”). Plaintiff’s claim for conversion fails, as Plaintiff is unable to satisfy
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`either the first or third element cited in Del Monte.
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`As Defendants’ taking and sharing of the Photo was consented to by Plaintiff in exchange
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`for Plaintiff’s receipt of free medspa services (see Aff. Of Angela Kogan, ¶ 8), Plaintiff is unable
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`the allege that Defendants wrongfully asserted dominion over Plaintiff’s name and image
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`inconsistent with Plaintiff’s ownership therein. For such reasons, Plaintiff’s claim of conversion
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`must be dismissed.
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`Count Six – Unjust Enrichment
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`vi.
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`The Florida Supreme Court has stated that “[t]he elements of an unjust enrichment claim
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`are a benefit conferred upon a defendant by the plaintiff, the defendant's appreciation of the benefit,
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`and the defendant's acceptance and retention of the benefit under circumstances that make it
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`inequitable for him to retain it without paying the value thereof.” Florida Power Corp. v. City of
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`Winter Park, 887 So.2d 1237, 1242 n. 4 (Fla.2004).
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`Plaintiff contends that Plaintiff conferred a benefit upon Defendants by voluntarily taken
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`the Photo, and that it would be inequitable for Defendants to retain the benefits conferred upon
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`them by using the Photo without paying fair value for the image. See D.E. 1, ¶¶ 112, 114. However,
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`as Plaintiff received value in exchange for the Photo – namely, free medspa services – not only
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`was such an express transaction (see e.g., Validsa, Inc. v. PDVSA Servs., 424 F. App'x 862, 873
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`(11th Cir.2001) (affirming district court's dismissal of counterclaim for unjust enrichment due to
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`the existence of an express contract)), but it would also not be inequitable for Defendants to retain
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`the benefit, because Defendants have given Plaintiff value in exchange for the Photo. See, e.g.
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`Pincus v. Am. Traffic Sols., Inc., 25 F.4th 1339, 1341 (11th Cir. 2022) (concluding that plaintiff
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`failed to state a claim for unjust enrichment because plaintiff had received “value in exchange” for
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`the conferred benefit.). Based on the fact each party received a mutually agreed upon benefit from
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`the other, there is no circumstance in which it would be inequitable for the parties to retain the
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`respective benefits conferred, and Plaintiff’s claim of unjust enrichment must be dismissed as a
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`result thereof.
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`CONCLUSION
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`WHEREFORE, for the reasons set forth above, Defendants respectfully request that the
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`Court enter an Order dismissing Plaintiff’s Complaint, with prejudice, and granting such other
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`relief as the Court deems just and appropriate.
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`October 12, 2022
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`Respectfully submitted,
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`HEITNER LEGAL, P.L.L.C
`Attorney for Defendants
`215 Hendricks Isle
`Fort Lauderdale, FL 33301
`Phone: 954-558-6999
`Fax: 954-927-3333
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`By:
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`DARREN A. HEITNER
`Florida Bar No.: 85956
`Darren@heitnerlegal.com
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`Case 1:22-cv-22972-RNS Document 16 Entered on FLSD Docket 10/12/2022 Page 14 of 14
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 12, 2022, I served a true and correct copy of the foregoing Motion
`via CM/ECF, which shall serve a copy hereof upon counsel of record for Plaintiff
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`By:
`DARREN A. HEITNER
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