                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 09-10527                   Oct. 13, 2009
                           Non-Argument Calendar            THOMAS K. KAHN
                         ________________________               CLERK


                     D. C. Docket No. 06-21770-CV-ASG

JENNIFER LEIGH MILLER,

                                                             Plaintiff-Appellant,

                                    versus

ANHEUSER BUSCH, INC.,
a Missouri Corporation doing
business in Florida,

                                                            Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (October 13, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Jennifer Leigh Miller, appearing pro se, appeals from the district court’s

grant of summary judgment in favor of Anheuser Busch, Inc. (“A-B”) on her
Florida statutory claim for misappropriation of her likeness for commercial

purposes. On appeal, Miller argues that the district court erred in: (1) relying on

releases she signed in favor of A-B and its agents in 2000 and 2001; and (2)

applying Florida’s single publication rule in finding her claim time-barred. After

thorough review, we affirm in part and reverse and remand in part.

      As an initial matter, because Miller is appearing pro se, we liberally construe

her pleadings.   Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998). We review an order granting summary judgment de novo, viewing all of

the facts in the record in the light most favorable to the non-movant. Brooks v.

County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-62 (11th Cir.

2006). Summary judgment is appropriate where the movant demonstrates, through

pleadings, interrogatories, and admissions on file, together with the affidavits, if

any, that no issue of material fact exists, and they are “entitled to judgment as a

matter of law.” Fed. R. Civ. P 56(c). “A party moving for summary judgment has

the burden of showing that there is no genuine issue of fact.” Eberhardt v. Waters,

901 F.2d 1578, 1580 (11th Cir. 1990) (quotation omitted). “A party opposing a

properly submitted motion for summary judgment may not rest upon mere

allegations or denials of [her] pleadings, but must set forth specific facts showing

that there is a genuine issue for trial.” Id. (quotation omitted). “All evidence and



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reasonable factual inferences therefrom must be viewed against the party seeking

summary judgment.” Id. Speculation or conjecture from a party cannot create a

genuine issue of material fact. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181

(11th Cir. 2005). “A mere scintilla of evidence in support of the nonmoving party

will not suffice to overcome a motion for summary judgment.” Young v. City of

Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).

      First, we disagree with Miller’s claim that the district court erred in granting

summary judgment on her misappropriation claim arising from A-B’s use of

Miller’s likeness from 2000-2002, but agree that the district court erred with regard

to A-B’s use of her likeness after January 2003. “Under the doctrine of Erie R. Co.

v. Tompkins, 304 U.S. 64 . . . (1938), a federal court in a diversity action must

apply the controlling substantive law of the state.” Cambridge Mut. Fire Ins. Co.

v. City of Claxton, Ga., 720 F.2d 1230, 1232 (11th Cir. 1983). The present dispute

arises under Florida statutory law governing the misappropriation of a person’s

name or likeness for commercial or advertising purposes. Section 540.08 of the

Florida Statutes provides:

             Unauthorized publication of name or likeness:

             (1) 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



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            other likeness of any natural person without the express
            written or oral consent to such use given by:

            (a) Such person;
            ...

            (2) In the event the consent required in subsection (1) is
            not obtained, the person whose name, portrait,
            photograph, or other likeness is so used, or any person,
            firm, or corporation authorized by such person in writing
            to license the commercial use of her or his name or
            likeness, or, if the person whose likeness is used is
            deceased, any person, firm, or corporation having the
            right to give such consent, as provided hereinabove, may
            bring an action to enjoin such unauthorized publication,
            printing, display or other public use, and to recover
            damages for any loss or injury sustained by reason
            thereof, including an amount which would have been a
            reasonable royalty, and punitive or exemplary damages.

Id.

      Based on the undisputed record, the district court correctly found that Miller

could not recover under Fla. Stat. § 540.08 for the time periods expressly covered

by the three releases she signed regarding the 2000 and 2001 photographs. Under

a plain reading of the statute, Miller’s express consent to the use of the

photographs from January 28, 2000 to the first of January 2003, via the releases

she signed, precludes her from suing A-B for its use of the photographs during that

period. As noted by the district court, Miller accepted payment for A-B’s use of

these photographs during this time, consistent with the usage rates set forth in the



                                         4
releases. Miller has therefore shown no disputes of fact regarding her claim based

on A-B’s use of her likeness from 2000-2002.

       The district court erred, however, in granting summary judgment in A-B’s

favor on Miller’s claim for damages arising from A-B’s use of her likeness from

and after January 2003. According to the record, at least one of her photographs

was used by A-B beyond the beginning of January 2003. The record also shows

that the one-year January 2002 Release signed by Miller expired in January 2003,

and that no additional release was signed by her. Regardless of any prior consent

Miller granted A-B, therefore, the evidence in the record indicates that A-B did not

have Miller’s authorization to use her likeness from and after January 2003, as

required by Fla. Stat. § 520.08.       However, A-B has suggested that there was no

time limitation on the use of any of the photographs pursuant to the 2000 and 2001

releases, and that the one-year periods referenced in those documents were merely

payment schedules for the first year following the shoots.1 We therefore conclude

that there are genuine issues of material fact regarding A-B’s use of Miller’s

likeness from and after January 2003, and reverse the district court’s merits ruling

in part, and remand for further resolution consistent with this analysis.




       1
        This perpetuity argument appears to be contradicted by the 2002 Release, which
concerns a photograph that also was previously subject to the 2000 Release.

                                              5
      Consequently, while we reject Miller’s claim that the district court erred in

applying Florida’s single publication rule in finding her claim time-barred, we

nonetheless conclude that the district court erred, in part, in its application of the

Florida rule under the particular facts of this case. “Under the doctrine of Erie R.

Co. v. Tompkins, 304 U.S. 64 . . . (1938), a federal court in a diversity action must

apply the controlling substantive law of the state.” Cambridge, 720 F.2d at 1232.

In Guaranty Trust Co. v. York, 326 U.S. 99 (1945), the Supreme Court held that

state statutes of limitations are substantive laws and must be followed by federal

courts in diversity actions. We therefore review the district court’s ruling through

application of the Florida law governing the relevant statute of limitations.

      Florida Statute § 540.08 does not provide its own limitations period, so

claims under the statute are governed by the four-year “catch-all” provision in Fla.

Stat. § 95.11(3); see also Fla. Stat. §§ 95.11(3)(f) (four year limitations period for

actions founded on a statutory liability), 95.11(3)(p) (four year limitations period

for any action not specifically provided for in the statute). This limitation period

begins to run on the date of the alleged unauthorized publication, not on the date

such publication is discovered. Putnam Berkley Group, Inc. v. Dinin, 734 So.2d

532, 535 (Fla. 4th DCA 1999). Moreover, the statutory period can only be tolled

for the reasons enumerated in Fla. Stat. § 95.051. Id. at 535-36.



                                           6
       Florida applies the “single publication rule” in misappropriation cases

brought under Fla. Stat. § 540.08, which provides that the cause of action accrues

on the date when the alleged harm first occurs, i.e., the date of the first

unauthorized publication. Id.; see also Fla. Stat. § 770.05 (“No person shall have

more than one choice of venue for damages for libel or slander, invasion of

privacy, or any other tort founded upon any single publication, exhibition, or

utterance, such as any one edition of a newspaper, book, or magazine, any one

presentation to an audience, any one broadcast over radio or television, or any one

exhibition of a motion picture. Recovery in any action shall include all damages for

any such tort suffered by the plaintiff in all jurisdictions.”); Fla. Stat. § 770.07

(“The cause of action for damages founded upon a single publication or exhibition

or utterance, as described in s. 770.05, shall be deemed to have accrued at the time

of the first publication or exhibition or utterance thereof in this state.”).

       We conclude that in granting A-B’s motion for summary judgment on

limitations grounds, the district court misapplied Florida’s first/single publication

rule as it relates to A-B’s alleged unauthorized use of Miller’s likeness beginning

in January 2003. As discussed above, the district court correctly ruled that, as a

matter of law, Miller authorized A-B to use the five photographs at issue between

January 2000 and January 2003. See supra. As a result of this ruling, Miller only



                                             7
has a possibly actionable claim under Fla. Stat. § 540.08 for the use by A-B of

Miller’s likeness after January 2003. See supra.

      For limitations purposes, Miller’s claim under the statute did not accrue until

the first unauthorized use, as this is the harm the statute is intended to remedy. Fla.

Stat. § 540.08 (titled “Unauthorized publication of name or likeness:”); Dinin, 734

So.2d at 535. It is undisputed that A-B had an active campaign using the 2000

photograph (“Special Moments”), which continued beyond the expiration of the

2002 Release signed by Miller. Accordingly, the first day of use by A-B after the

expiration of the 2002 Release, after January 2003, is the date of first unauthorized

publication -- which triggered the four-year limitation period. Because Miller’s

complaint was filed on July 14, 2006, her claim for damages relating to

unauthorized uses beginning after January 2003 is not time-barred.

      The district court’s decision to apply a “first publication” date which falls

within the period of authorized use, notwithstanding subsequent unauthorized use,

ignores the express language of the of the misappropriation statute as well as its

intended purpose. We therefore reverse the district court’s statute of limitations

ruling in part, and remand the case for consideration of Miller’s claim for the

unauthorized use(s) by A-B from and after January 2003.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.



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