The opinion of the court was delivered by: Greenaway, District Judge.
This matter comes before the Court on Plaintiff Corky Ballas'
("Plaintiff") motion to remand this matter to the Superior Court
of New Jersey or alternatively to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1).*fn1 Also before the Court is Defendants
Gennaro Tedesco's and Ballroom Blitz Music's (collectively
"Defendants") motion seeking (1) a temporary restraining order,
(2) a preliminary injunction and (3) to vacate the December 11,
1998, order of the Superior Court of New Jersey.*fn2 This Court
heard oral argument on those motions on January 29, 1999.*fn3
For the reasons stated below, Plaintiff's motion to remand is
denied. Defendants' motion for a temporary restraining order is
granted. Also, Defendants' motion to vacate the order of the
Superior Court of New Jersey is granted.
The e-mails reflected that the parties discussed a deal whereby
Plaintiff would pay Defendant a fee of $15,000 for all the
musical arrangements, production, mixing and mastering of the CD.
In return, Plaintiff would have the exclusive right to
manufacture 5,000 copies of the CD for sale.*fn6 Plaintiff
forwarded to Defendant several checks totaling $7,500 as a down
payment for Defendant to start work on the project. On March 8,
1998, Plaintiff traveled to, and spent the day at, Defendant's
studio to participate in the production of the CD. In
anticipation of the production of the CD, on June 30, 1998,
Plaintiff placed an advertisement touting the release of the CD
in the program book of the 46th International Modern and
Latin-American Championship. The Championship had been scheduled
for October 6th, 7th and 8th of 1998. Plaintiff and his wife were
scheduled to dance in the competition. Plaintiff also paid for
the artwork design cover in anticipation of the production of the
In July 1998, the parties exchanged drafts of a proposed
agreement through e-mails. Due to disagreements with various
terms of the proposed agreements, the parties' relationship
ceased and negotiations ended.
Thereafter, Defendants obtained a certificate of registration
from the United States Copyright Office for sound recordings
embodied on a CD entitled "Fire Vol. 1".*fn7 On or about
November 16, 1998, at the Ohio Star Ball, DanceSport Competition,
Defendants began marketing that CD under the name "Fire Volume
1," which embodied the sound recordings that had been intended
for the "Titantic Passion" CD.*fn8
On December 11, 1998, Plaintiff moved for a temporary
restraining order ("TRO") and preliminary injunction in the
Superior Court of New Jersey, Hudson County. Plaintiff argued
that Defendants breached the parties' contract and that he would
be irreparably harmed by Defendants' production and sale of the
sound recordings originally intended for the Titantic Passion CD.
The court, analyzing the matter as a contract case, found that
Plaintiff established a likelihood of success in showing that the
parties had agreed to a contract and that Plaintiff would be
irreparably harmed by Defendants' reproduction and
sale of those sound recordings.*fn9 Thus, the court granted
Plaintiff emergent relief requiring Defendants to turn over the
master copy of the sound recordings to Plaintiff and enjoining
Defendants from further marketing or selling any CDs embodying
those sound recordings. The court required Plaintiff to forward
Defendants the remaining $9,100 due and owing under the parties'
contract.*fn10 Although a formal written order was not signed
until January 12, 1999, the court noted on the record that its
decision was effective as of the date of the hearing, December
On December 17, 1998, Defendants filed a notice of removal with
this Court. Plaintiff does not contest the validity of the filing
of the notice of removal. Thereafter on January 14, 1999,
Defendants filed the instant motion to (1) vacate the order of
the Superior Court of New Jersey, (2) enter a temporary
restraining order and (3) enter a preliminary injunction. On
January 19, 1999, Plaintiff filed a motion to remand this matter
back to the Superior Court of New Jersey.
First, this Court must consider Plaintiff's motion to remand
this matter to the Superior Court of New Jersey. Next, this Court
will consider Defendants' motion seeking preliminary restraints
and an order to vacate the Superior Court of New Jersey's prior
Plaintiff seeks to have this Court remand this matter to the
Superior Court of New Jersey, arguing that it is purely a matter
of state contract law. On the other hand, Defendants argue that
this matter is so intertwined with the underlying copyright issue
that it belongs in federal court, the forum with exclusive
jurisdiction over copyright cases.
An action removed to federal court may be remanded to state
court "[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction . . ."
28 U.S.C. § 1447(c). When confronted with a motion to remand, the removing
party "bears the burden of proving that jurisdiction exists."
Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990),
cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046
(1991). "The removal statutes `are to be strictly construed
against removal and all doubts should be resolved in favor of
remand.'" Id. (quoting Steel Valley Auth. v. Union Switch and
Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987), cert.
dismissed sub nom., American Standard v. Steel Valley Auth.,
484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988)).
Jurisdiction in this case is based on the presentation of a
federal question. 28 U.S.C. § 1331. Defendants contend that
pursuant to the Copyright Act, 17 U.S.C. § 101 et seq., cases
involving copyrights come under the exclusive jurisdiction of the
federal courts. Defendants further argue that Plaintiff's state
law contract cause of action is preempted by
17 U.S.C. § 301.*fn11
Defendants have satisfied their burden of establishing that
this Court has jurisdiction over this matter. Plaintiff's
complaint evidences a dispute over the ownership of the copyright
to the disputed sound recordings.*fn15 In Count One of
Plaintiff's complaint (¶ 7 of Wherefore Clause), he requests that
the Court declare "plaintiff the true and correct owner of the
copyright of the music product produced at the request of
plaintiff, originally to be entitled Titantic Passion."
Similarly, in paragraph nine of the same clause, Plaintiff
requests that the Court declare "the music product produced at
the request of plaintiff, originally to be titled Titantic
Passion a `Work for Hire.'" In those two requests for relief,
Plaintiff expressly seeks copyright protection and any ancillary
or associated rights. Such claims plainly are governed by federal
copyright law, and as such, are within the exclusive jurisdiction
of the federal courts.
Furthermore, at oral argument, Plaintiff's attorney stated on
the record that "there's going to be a serious factual issue
whether it's a joint authorship, and, therefore, both parties
have a right to the copyright." Tr. Oral Argument 1/29/1999, at
46. Plaintiff's attorney made that statement after earlier
telling this Court, in support of his pure contract theory, that
his work for hire argument was not his primary argument and that
he concedes that there was no evidence that this was a work for
hire. See id. at 7. Plaintiff's attorney's statements on the
record and Plaintiff's complaint convince this Court that this
case involves a dispute over who is the rightful owner of the
copyright rights to the underlying sound recordings. This matter
is governed by the Copyright Act.
Plaintiff's motion to remand is denied.*fn16 Defendants have
established that this matter involves rights arising under the
Copyright Act. Those claims are within the exclusive jurisdiction
of the federal courts.
Temporary Restraining Order
"It is fundamental that `the purpose of a[n] interlocutory
injunction is to preserve the status quo to protect the
respective rights of the parties pending determination on the
merits.'" Value Group, Inc. v. Mendham Lake Estates, L.P.,
800 F. Supp. 1228, 1231 (D.N.J. 1992) (quoting Cordis Corp. v.
Medtronic, Inc., 780 F.2d 991, 994 (Fed.Cir. 1985), cert.
denied, 476 U.S. 1115, 106 S.Ct. 1971, 90 L.Ed.2d 655 (1986)).
This Court must consider four factors in determining whether to
grant Defendants' motion for a TRO: "(1) the likelihood of
success on the merits after a full hearing; (2) whether the
movant will be irreparably injured without the restraint; (3)
whether the party to be enjoined will be irreparably injured if
the preliminary relief is granted; and (4) whether the public
interest will be served by the preliminary relief." Id. ...