USCA11 Case: 20-13677 Date Filed: 12/21/2021 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13677
Non-Argument Calendar
____________________
COURTNEY B. ANDERSON,
Plaintiff-Appellant,
versus
COUPONS IN THE NEWS,
a foreign corporation
d.b.a.
couponsinthenews.com,
NAMECHEAP, INC.,
a foreign corporation,
WHOISGUARD, INC.,
a foreign corporation,
JOHN/JANE DOE,
USCA11 Case: 20-13677 Date Filed: 12/21/2021 Page: 2 of 4
2 Opinion of the Court 20-13677
Fictitious Defendants Does 1-3,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:20-cv-00041-JSM-PRL
____________________
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Courtney Anderson appeals the district court’s Rule 12(b)(6)
dismissal, with prejudice, of her claim against Coupons in the News
under
Fla. Stat. § 540.08. For the reasons which follow, we affirm.1
Accepting the factual allegations in the second amended
complaint as true, see, e.g., La Grasta v. First Union Sec., Inc.,
358
F.3d 840, 845 (11th Cir. 2004), Ms. Anderson alleged that she was
arrested at a Best Buy store following a dispute over coupons. The
store manager told police that Ms. Anderson had dropped her pants
and was showing her buttocks.
1 Ms. Anderson also seeks to appeal the district court’s dismissal of certain
other claims, but says that she is relying on the arguments she made below.
See Appellant’s Br. at 14-15. Because such incorporation is improper, we do
not address the other claims. See Four Seasons Hotels & Resorts, B.V. v. Con-
sorcio Barr S.A.,
377 F.3d 1164, 1167 n.4 (11th Cir. 2004).
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20-13677 Opinion of the Court 3
Ten days later, Coupons published an article on its website
entitled “Pantless Couponer Arrested After Checkout Dispute.”
The article was accompanied by a photograph of the front of a Best
Buy store and a superimposed image of Ms. Anderson’s booking
photograph.
In Count 1 of her second amended complaint, Ms. Anderson
alleged that Coupons violated
Fla. Stat. § 540.08(1)(a), which (as
relevant here) prohibits the unauthorized publication or use of a
person’s photograph or other likeness “for the purpose of trade or
for any commercial or advertising purpose.” The Florida Supreme
Court has held that the purpose of § 540.08 “is to prevent the use
of a person’s name or likeness to directly promote a produce or
service because of the way that the use associates the person’s
name or personality with something else.” Tyne v. Time Warner
Entertainment,
901 So.2d 802, 808 (Fla. 2005).
Ms. Anderson characterized the Coupons article—attached
to the complaint as Exhibit B—as an “advertisement” in her com-
plaint, but the district court ruled that a review of the document
demonstrated that it was an article and not an advertisement. And
because it was not an advertisement or commercial speech, Ms.
Anderson’s claim under § 540.08(1)(a) failed.
We agree with the district court that Ms. Anderson failed to
state a plausible claim under § 540.08(1)(a). See generally Bell At-
lantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). When a docu-
ment attached to a complaint conflicts with an allegation in the
complaint, the document governs. See Hoefling v. City of Miami.,
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4 Opinion of the Court 20-13677
811 F.3d 1271, 1277 (11th Cir. 2016). And here Exhibit B, on its
face, is an article reporting on Ms. Anderson’s arrest. It is not an
advertisement. Nor is it commercial speech.
Ms. Anderson argues that Exhibit B is a publication that is a
“digital marketing tool known as a click funnel advertisement de-
signed and used solely to promote the business of coupons which
is advertising.” Appellant’s Br. at 6. The argument is based on a
line in Exhibit B that allows a reader to click to contact Coupons
about advertising. See
id. At 11. But the complaint does not con-
tain any allegations or claims about a “click funnel advertisement,”
and Ms. Anderson could not amend her complaint through her re-
sponse to Coupon’s motion for attorney’s fees. See White v. Bel-
tram Edge Tool Supply, Inc.,
789 F.3d 1188, 1200 (11th Cir. 2015)
(“A plaintiff may not amend her complaint through argument in a
brief opposing summary judgment”).
We affirm the district court’s dismissal of Count 1 with prej-
udice. 2
AFFIRMED.
2 At the end of her brief, Ms. Anderson asks in a single sentence that we also
reverse the district court’s award of attorney’s fees. We decline to do so be-
cause Ms. Anderson did not appeal from the award of attorney’s fees and be-
cause she has not explained why the award was legally erroneous.
