Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

RAPPOPORT v. STEVEN SPIELBERG

June 26, 1998

JAY L. RAPPOPORT, Plaintiff,
v.
STEVEN SPIELBERG, INC., ET AL., Defendants.



The opinion of the court was delivered by: LECHNER

OPINION

 LECHNER, District Judge

 This is an action brought by pro se plaintiff, Jay L. Rappoport, ("Rappaport") against defendants, Steven Spielberg ("Spielberg"), Amblin Entertainment ("Amblin"), Michael Ovitz ("Ovitz"), Creative Artists Agency ("CAA"), Industrial Light and Magic ("ILM"), Universal City Studios, Inc. ("Universal"), *fn1" Jeffrey Montgomery ("Montgomery"), Harvey Entertainment ("Harvey"), Warner Brothers ("Warner Bros."), Time Warner, Inc. ("Time Warner"), Turner Pictures Worldwide, Inc. ("Turner Pictures"), Turner Broadcasting System, Inc. ("TBS"), Hanna-Barbera, Inc. ("Hanna-Barbera"), David Kirschner ("Kirschner"), Maurice Hunt ("Hunt"), Tele-Communications Inc. ("TCI"), The News Corporation Limited (the "News Corp."), Twentieth Century Fox Film Corporation ("Fox"), Pizza Hut, Inc. ("Pizza Hut"), Nabisco, Inc., ("Nabisco"), Star Enterprise, Inc. ("Star"), Texaco, Inc. ("Texaco"), *fn2" DowBrands, Inc. ("Dow"), Tropicana Products, Inc. ("Tropicana"), Kellogg USA, Inc. ("Kellogg"), The Washington Post Company (the "Washington Post"), Viacom International, Inc. ("Viacom"), *fn3" Paramount Pictures Corporation ("Paramount Pictures"), Paramount Communications ("Paramount Communications"), Paramount Studios ("Paramount Studios"), *fn4" The Coca-Cola Company ("Coca-Cola"), Big Feats Entertainment, L.P. ("Big Feats"), CBS Broadcasting, Inc. ("CBS"), Andrew Hill ("Hill"), the City of Portland (Oregon) (the "City of Portland"), Portland Cable Access ("Portland Cable"), Corporation for Public Broadcasting ("CPB"), Channel 13 (New York City) ("EBC"), Elaine Weinberg ("Weinberg"), Debbie Luppold ("Luppold"), Melinda McCrossen ("McCrossen"), Phyllis Cole ("Cole"), Ellery Nelson ("Nelson"), Preston Foster ("Foster"), George Slanina ("Slanina") and Sandi St. John ("St. John") (collectively, the "Defendants").

 The Amended Complaint asserts claims for copyright infringement, theft of trade secrets, breach of implied contract, false designation of origin pursuant to 15 U.S.C. § 1125(a), restraint of trade pursuant to 15 U.S.C. § 1 and violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c). See Amended Complaint at P 5. Jurisdiction and venue are asserted in the Amended Complaint pursuant to 28 U.S.C. §§ 1338(a) and 1400(a), 15 U.S.C. §§ 1125(a), 15(a) and 18 U.S.C. § 1965(a), (b). See id.

 Rappoport contends his "work taken by the Defendants was the basis for, and has been incorporated into some of the most commercially successful and creatively important films, television series, special effects work, and technological innovations of the decade." Id. at P 8. The thirty page, 221 paragraph Amended Complaint is far from clear. It does not contain a short and plain statement of the claims upon which Rappoport seeks relief. See Fed. R. Civ. Pro. 8(a). Rappoport does make clear he has not been recognized for his work and seeks "accurate attribution for his work and compensatory and punitive damages to be determined at trial." Id. at PP 215-221.

 Currently pending are the following motions:

 
Motions to Transfer
 
1. a motion by Rappoport to transfer (the "Rappoport Motion to Transfer") *fn5" the action to the United States District Court for the District of Oregon (the "District of Oregon");
 
2. a motion by the "Movie Defendants" *fn6" to transfer (the "Movie Defendants Motion to Transfer") *fn7" the action to the United States District Court for the Southern District of New York (the "Southern District of New York");
 
3. a motion by CBS and Hill *fn8" to transfer (the "CBS/Hill Motion to Transfer") *fn9" the action to the Southern District of New York;
 
4. a motion by Coca-Cola to transfer (the "Coca-Cola Motion to Transfer") *fn10" the action to the Southern District of New York;
 
5. a "motion" by Tropicana to transfer (the "Tropicana Motion to Transfer") *fn11" the action to the Southern District of New York;
 
6. a motion by Star and Texaco *fn12" to transfer (the "Star/Texaco Motion to Transfer") *fn13" the action to the Northern District of Georgia;
 
7. a motion by Big Feats to transfer (the "Big Feats Motion to Transfer") *fn14" the action to the United States District Court for the Northern District of Texas (the "Northern District of Texas");
 
Motions to Dismiss or Transfer
 
8. Motions by TCI to dismiss the action for insufficiency of process and for lack of personal jurisdiction (the "TCI Motion to Dismiss") or, in the alternative, to transfer (the "TCI Motion to Transfer") the action to the Southern District of New York (collectively, the "TCI Motion to Dismiss/Transfer"); *fn15"
 
9. a motion by the "PCA Defendants" *fn16" to dismiss the action for lack of personal jurisdiction or, in the alternative, to transfer the action to the District of Oregon (the "PCA Defendants Motion to Dismiss/Transfer"); *fn17"
 
10. a motion by the City of Portland to dismiss the action for lack of personal jurisdiction or, in the alternative, to transfer the action to the District of Oregon (the "City of Portland Motion to Dismiss/Transfer"); *fn18"
 
Motions to Dismiss
 
11. a motion by Spielberg to dismiss the action for insufficiency of process and for lack of personal jurisdiction (the "Spielberg Motion to Dismiss"); *fn19"
 
12. a motion by Montgomery to dismiss the action for lack of personal jurisdiction (the "Montgomery Motion to Dismiss"); *fn20"
 
13. a motion by Harvey to dismiss the action for lack of personal jurisdiction (the "Harvey Motion to Dismiss"); *fn21"
 
14. a motion by Hanna-Barbera to dismiss the action for lack of personal jurisdiction (the "Hanna-Barbera Motion to Dismiss"). *fn22"

 Excluding the Rappoport Motion to Transfer, these motions will be collectively referred to as the "Post-Amendment Motions."

 For the reasons set forth below:

 
1. the Rappoport Motion to Transfer is granted in part and denied in part;
 
2. the Movie Defendants Motion to Transfer is granted; the claims against the Movie Defendants are severed and transferred to the Southern District of New York;
 
3. the CBS/Hill Motion to Transfer is granted; the claims against CBS and Hill are severed and transferred to the Southern District of New York;
 
4. the Coca-Cola Motion to Transfer is granted; the claims against Coca-Cola are severed and transferred to the Southern District of New York;
 
5. the Tropicana Motion to Transfer is granted; the claims against Tropicana are severed and transferred to the Southern District of New York;
 
6. the Star/Texaco Motion to Transfer is granted; the claims against Star and Texaco are severed and transferred to the Northern District of Georgia;
 
7. the Big Feats Motion to Transfer is granted; the claims against Big Feats are severed and transferred to the Northern District of Texas;
 
8. the TCI Motion to Dismiss/Transfer is granted in part and denied in part; the claims against TCI are severed and transferred to the Southern District of New York;
 
9. the PCA Defendants Motion to Dismiss/Transfer is granted in part and denied in part; the claims against the PCA Defendants are severed and transferred to the District of Oregon;
 
10. the City of Portland Motion to Dismiss/Transfer is granted in part and denied in part; the claims against the City of Portland are severed and transferred to the District of Oregon;
 
11. the Spielberg Motion to Dismiss is granted; the claims against Spielberg are dismissed without prejudice;
 
12. the Montgomery Motion to Dismiss is granted; the claims against Montgomery are dismissed without prejudice;
 
13. the Harvey Motion to Dismiss is granted; the claims against Harvey are dismissed without prejudice;
 
14. the Hanna-Barbera Motion to Dismiss is granted; the claims against Hanna-Barbera are dismissed without prejudice; and
 
15. the claims against Ovitz, Kirschner and Kellogg are severed and transferred to the District of Oregon.

 In summary, the claims against Amblin, Universal, Warner Bros., Time Warner, Turner Pictures, TBS, the News Corp., Fox, Paramount, Viacom, ILM, Nabisco, Dow, Pizza Hut, CAA, the Washington Post Company, CBS, Hill, Coca-Cola, Tropicana and TCI are transferred to the Southern District of New York. The claims against Star and Texaco are severed and transferred to the Northern District of Georgia. The claims against Big Feats are severed and transferred to the Northern District of Texas. The claims against Portland Cable, Luppold, McCrossen, Nelson, Slanina, the City of Portland, Ovitz, Kirschner and Kellogg are transferred to the District of Oregon. The claims against Spielberg, Montgomery, Harvey and Hanna-Barbera are dismissed without prejudice.

 Background

 A. Procedural History

 On 21 November 1997, Rappoport filed the thirty page, single-spaced complaint (the "Complaint") that named as defendants more than forty individuals and entities. See Complaint. Upon filing the Complaint, Rappoport paid the required filing fee.

 On 16 January 1998, Rappoport filed an application to proceed in forma pauperis (the "Application"). By order, dated 22 January 1998, (the "22 January 1998 Order") the Application was denied. See 22 January 1998 Order.

 On 20 January 1998, Rappoport filed a request for appointment of counsel (the "Request for Counsel"). See Request for Counsel. By order, dated 30 January 1998, (the "30 January 1998 Order") the Request for Counsel was denied by Magistrate Judge Dennis M. Cavanaugh ("Magistrate Judge Cavanaugh"). See 30 January 1998 Order.

 On 17 February 1998, Universal, Warner Bros., Time Warner, Turner Pictures, TBS, the Paramount Defendants and Viacom filed a motion to compel Rappoport to amend the Complaint (the "Motion Compelling Amendment of the Complaint"). On 2 March 1998, TCI filed a Notice of Joinder in the Motion Compelling the Amendment of the Complaint. Several other motions were filed by the Defendants seeking the dismissal of the Complaint for, among other things, lack of personal jurisdiction, insufficient service of process and failure to state a claim (collectively, the "Pre-Amendment Motions to Dismiss the Complaint").

 By order, dated 2 March 1998, (the "2 March 1998 Order") the Motion Compelling Amendment of the Complaint was granted by Magistrate Judge Cavanaugh. Rappoport was directed to file an amended complaint within fifteen days of filing the 2 March 1998 Order. See 2 March 1998 Order.

 By order, dated 4 March 1998, (the "4 March 1998 Order") EBC was voluntarily dismissed from the action. See 4 March 1998 Order.

 On 6 March 1998, a hearing (the "6 March 1998 Hearing") was held before Magistrate Judge Cavanaugh. At the 6 March 1998 Hearing, Magistrate Judge Cavanaugh denied, without prejudice, the Pre-Amendment Motions to Dismiss the Complaint. See Transcript of 6 March 1998 Hearing at 5. Magistrate Judge Cavanaugh advised the Defendants that motions concerning lack of jurisdiction, lack of service of process, improper venue and forum non conveniens would be entertained before any other motion would be considered. See Transcript of 6 March 1998 Hearing at 5.

 By order, dated 9 March 1998, (the "9 March 1998 Order") CPB was voluntarily dismissed from the action. See 9 March 1998 Order. By order, dated 10 March 1998, (the "10 March 1998 Order") Weinberg was voluntarily dismissed from the action. See 10 March 1998 Order.

 On 16 March 1998, Rappoport filed the Amended Complaint. See Amended Complaint. The Post-Amendment Motions were then filed. Rappoport did not submit opposition, as such, to the Post-Amendment Motions. Instead, he filed the Rappoport Motion to Transfer the action to the District of Oregon. In the Rappoport Moving Brief, Rappoport argues in favor of the Rappoport Motion to Transfer and in opposition to the Post-Amendment Motions.

 By letter, dated 21 April 1998, (the "Rappoport 21 April 1998 Letter"), Rappoport stated he has been unable to serve Hunt, Foster, Cole and St. John. He also stated that because the inclusion of these individuals as defendants "is not strictly necessary to achieving a fair resolution to the dispute, [he] is willing to waive his claims against" them. See Rappoport 21 April 1998 Letter. By order, dated 10 June 1998, Hunt, Foster, Cole and St. John were dismissed from the action, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and pursuant to the Rappoport 21 April 1998 Letter. See 10 June 1998 Order; Rappoport 21 April 1998 Letter.

 B. Facts

 Rappoport is currently a citizen and resident of the State of New Jersey. See Amended Complaint P 1. He is a self-professed "aspiring writer and film-maker." See id.

 The Amended Complaint pleads five claims, denominated as copyright infringement, breach of implied contract, false designation of origin, restraint of trade and RICO. See id. at P 5. Each claim is premised on conduct of the Defendants to misappropriate the "intellectual property" of Rappoport through alleged acts of "industrial espionage," "electronic surveillance" and theft of confidential materials. See id. at PP 6-7.

 In most instances, the Amended Complaint fails to designate which purported claims are directed at particular defendants. See Amended Complaint. In some instances, the allegations which are asserted against certain defendants are too vague to adequately state a claim. For example, Spielberg, Amblin, Ovitz, CAA, ILM, Universal, News Corp., TCI, Time Warner, Turner Pictures and the Paramount Defendants are described in the Amended Complaint as "Primary Motivating Parties." See id. at P 26. Montgomery, Harvey, Kirschner and Hanna-Barbera, on the other hand, are vaguely described as "Secondary Conspirators." See id. at P 27. To the extent possible, the various claims as to each of the Defendants are set forth below.

 Rappoport alleges that in September 1991, while he resided in New Jersey, he made a submission to a News Corp. executive, Rafael Pastor ("Pastor"), *fn23" consisting of a short synopsis of a pilot episode for a proposed television series entitled "Portland Stories" and a "partial shooting plan" for the first episode. See id. at PP 2-3, 28, 32. The submission appears to have been sent to Pastor in New York. Rappoport contends he did not submit the synopsis to any other party. See id. at P 36. The submission by Rappoport also included two allegedly novel special effects for use in the story. See id. at P 32. Rappoport alleges Pastor was initially enthusiastic about his work and assured him it would be treated as confidential. See id. at PP 29, 32. Rappoport asserts, however, that Pastor later indicated he was not interested in the work and suggested Rappoport seek other avenues to produce his work. See id. at P 33.

 After concluding Pastor was not interested in pursuing his submission, Rappoport decided to produce his work on his own at the facilities of Portland Cable in Portland, Oregon, which he did during the summer of 1992. See id. at P 37.

 The Amended Complaint alleges that while Rappoport was working at Portland Cable, his production "was the subject of an intensive industrial espionage organized and carried out by the Defendants." Id. at P 41. Allegedly, Pastor had passed on the submission of Rappoport to others in the industry. See id. It is alleged that the "industrial espionage" included "the placement of Jeffrey Montgomery, the president of Harvey Entertainment, as an industrial spy" at Portland Cable, who facilitated the misappropriation of Plaintiff's story concepts and "innovative effects techniques." See id. at PP 42, 47, 49-50.

 The Amended Complaint contends that a "strategic umbrella collusion" existed among various entertainment industry entities, pursuant to which there was an "inner flow of projects" and talent from which they would all ultimately benefit. See id. at P 89. Noting the "large scale acquisition or merger" activity in the industry, the Amended Complaint asserts that "the circumstantial pattern of fact in this case, suggests that these activities, as a group, may well be interdependent and collusive." Id. at P 95 (emphasis added).

 The Amended Complaint alleges copyright infringement by two films, "Pagemaster," and "Twister," upon the copyrighted work of Rappoport called "Critical Scrutiny." See id. at PP 9-10, 99. The Amended Complaint also alleges copyright infringement by the television series "Wishbone," "Touched by an Angel," and "Through the Horn" upon the work of Rappoport called "Portland Stories" and "Critical Scrutiny." See id. at P 13. As well, the Amended Complaint alleges:

 
1. Pagemaster incorporates "plaintiff's synopsis, video, PCA production and development work", id. at P 17;
 
2. Twister "incorporates imagery from plaintiff's copyrighted work", id. at P 18;
 
3. Two Diet Coke commercials "misappropriates [sic] the first special effects technique from plaintiff's synopsis", id. at P 19;
 
4. Forrest Gump "misappropriates the second special effects technique from plaintiff's synopsis, PCA production and development work", id. at P 20;
 
5. Jurassic Park "misappropriated technique for the placement of magnets to capture physical motion, and transfer to screen characters, from PCA production, recorded by Mr. Montgomery on September 4, 1992", id. at P 21;
 
6. Wishbone misappropriates "from plaintiff's story and TV series conception of CRITICAL SCRUTINY, from PCA production, recorded by Mr. Montgomery on September 11, 1992", id. at P 22;
 
7. Touched by An Angel misappropriates "from plaintiff's unpublished story and TV series conception of the GODDESS OF PORTLAND from PCA production, recorded by Mr. Montgomery on September 11, 1992", id. at P 23; and
 
8. Through the Horn is "taken from the plaintiff's description of his unpublished story THE WATCHMAN'S TALE, recorded by Mr. Montgomery on September 11, 1992", id. at P 24.

 The second claim, for breach of implied contract and theft of trade secrets, alleges the improper disclosure and exploitation of the materials submitted to Pastor in 1991 and the misappropriation of elements from the copyrighted audiovisual work of Rappoport. See id. at PP 138-183. In addition to "Pagemaster" and "Twister," this claim complains of misappropriation by the Defendants in all of the following works: the film "Forrest Gump", two Diet Coke commercials, the film "Jurassic Park", the PBS television series "Wishbone", the CBS television series "Touched By An Angel", and a story entitled "Through the Horn."

 The third claim is for false designation of origin under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)), with respect to the credits of "Pagemaster" and "Twister," both of which Rappoport claims contain copyrightable elements from his work. See id. at PP 184-186.

 The fourth claim alleges unfair restraint of trade, in violation of 15 U.S.C. § 1. See id. at PP 187-199.

 Finally, the fifth claim asserts a RICO violation under 18 U.S.C. § 1962, again based on the alleged "formation of a criminal enterprise in New York and at PCA, for the purpose of defrauding the plaintiff of his valuable intellectual property for commercial exploitation." Id. at P 201.

 As mentioned, Rappoport seeks "accurate attribution for his work, and compensatory and punitive damages" because of the alleged conduct of the Defendants. See Amended Complaint at PP 8, 215-221.

 Extraordinary steps were taken by Magistrate Judge Cavanaugh to organize and schedule the submission of the Post-Amendment Motions and opposition from Rappoport to these motions. Specifically, Rappoport was encouraged to retain counsel; he declined to do so. See Transcript of 6 March 1998 Hearing at 4. Rappoport was advised the Post-Amendment Motions could result in not only transfer but also severance of certain portions of this case and transfer to more than one district. See id. at 13. Even after such discussions, Rappoport asked whether it was necessary for him to submit opposition to the Post-Amendment Motions or whether the court could "just look at the facts and apply the law." Id. at 15. As mentioned, Rappoport did submit opposition - albeit in the Rappoport Moving Brief submitted in support of the Rappoport Motion to Transfer.

 Discussion

 A. Standard of Review for Pro Se Submissions

 Pro se submissions, "'however inartfully pleaded,' must be held to 'less stringent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)), reh'g denied, 429 U.S. 1066 (1977); see also Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594, reh'g denied, 405 U.S. 948, 30 L. Ed. 2d 819, 92 S. Ct. 963 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992) (holding pro se petition cannot be held to same standard as pleadings drafted by attorneys); Lewis v. Attorney General of United States, 878 F.2d 714, 722 (3d Cir. 1989). When receiving a pro se complaint, a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.