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BAER v. CHASE

February 20, 2004.

ROBERT V. BAER, Plaintiff
v.
DAVID CHASE, DC ENTERPRISES, INC., a Delaware Corporation, and JOHN DOES A-Z, Defendants



The opinion of the court was delivered by: JOEL PISANO, District Judge

[EDITORS NOTE:THIS CASE IS DESIGNATED "NOT FOR PUBLICATION".]

OPINION

  Before the Court is Defendant David Chase ("Chase") and Defendant DC Enterprises, Inc.'s ("DC Enterprises," and together with Chase, the "Defendants") motion for summary judgment under Federal Rule of Civil Procedure 56(c). Plaintiff Robert V. Baer ("Baer" or the "Plaintiff) opposes the Defendants's motion. The Court has jurisdiction under 28 U.S.C. § 1332, and resolves this motion without oral argument as per Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants summary judgment in favor of the Defendants, and Page 2 dismisses the Complaint in its entirety with prejudice.

 I. BACKGROUND

  A. Introduction

  At the heart of this case is the creation and development of the well-known television series, The Sopranos. The Sopranos aired on HBO in 1999, and the rest, as they say, is history. By all accounts, The Sopranos has received critical acclaim, popularity, and financial success. Through this lawsuit, Robert Baer seeks credit and compensation for what he perceives as his role in the creation and development of The Sopranos pursuant to an alleged oral contract between him and David Chase, the creator, producer, writer, and a director of the show. According to Baer, he and Chase orally agreed on three separate occasions that if the show was a success, that Chase would "take care of Baer, and "remunerate [Baer] in a manner commensurate to the true value of [his] services." This agreement is the basis of Baer's legal action. For the purpose of this motion only, the Defendants accept Baer's version of the events and argue that as articulated by Baer himself, the oral agreement is vague, indefinite, and unenforceable.

  B. Procedural History

  On or about May 15, 2002, Baer filed a verified complaint in this Court; thereafter, on May 2. 2003, Baer filed an amended verified complaint (the "Complaint"). The Complaint alleged: (1) breach of contract; (2) breach of implied contract; (3) breach of quasi-contract; (4) common law fraud; (5) equitable fraud; (6) negligent misrepresentation; (7) breach of fiduciary duty; (8) unfair competition under section 43(a) of the Lanham Act, 15 U.S.C. § 1125; (9) unfair competition and misappropriation under N.J.S.A. 56:4-1; and (10) tortious interference with prospective economic Page 3 advantage.*fn1 The Defendants timely filed answers to each complaint.

  During the course of discovery, the Defendants deposed Baer, Joseph Urbanczyk ("Urbanczyk"), Detective Thomas Koczur ("Koczur"), Detective Robert A. Jones ("Jones"), and Antonio Spirito ("Spirito") (See Certification of Peter L. Skolnik ("Skolnik Cert."), Exhibits B-F, referred to herein as "Baer Tr.", "Urbanczyk Tr.", "Koczur Tr.," and "Spirito Tr."). In addition, Baer responded to interrogatories and supplemental interrogatories propounded by the Defendants. (Skolnik Cert., Exhibits A, G, referred to herein as "Answer to Defs.'s Interrog." and "Answer to Defs.'s Supplemental Interrog.").

  C. Facts

  It should be noted at the outset that the Court finds there are no genuine issues of material fact. To the extent that some of the facts discussed below are in dispute, the Court finds that they are immaterial to the outcome of this case.

  Originally from New Jersey, Chase relocated to Los Angeles in 1971, and began writing for television, first for The Night Stalker, and later for The Rockford Files. (Defendants's Rule 56 Statement of Uncontroverted Material Facts, referred to herein as "Defs.'s 56.1 Stmt."*fn2 at ¶¶ 1-2, 7.) During his years in Los Angeles, Chase also produced, directed, and created television series; his credits include Off the Minnesota Strip, Alfred Hitchcock Presents, Almost Grown, I'll Fly Away, and Northern Exposure. (Id. at ¶ 7.) A number of projects that Chase has worked on involved Page 4 organized criminal activity and were set in New Jersey. (Id. at ¶¶ -11.) Chase had also developed an idea for a script about "a mob boss in therapy," the concept that would become The Sopranos. (Id. at ¶¶ 12-13.)

  In the spring of 1995, while producing and directing a Rockford Files "movie-of-the-week" that he had scripted, Chase met Urbanczyk, who was working on the project as a camera operator and temporary director of photography. (Defs.'s 56.1 Stmt. at ¶ 18.) During their time together, Chase told Urbanczyk that he was "on the lookout" for other writers who could develop feature film screenplays that he might later re-write and direct. (Id. at ¶ 19.) In addition, Urbanczyk overheard Chase say that the Rockford creators were yet to assign additional writers for their "movie-of-the-week" deal. (Id.) Urbanczyk, a longtime friend of Baer's, knew that Baer was interested in a career writing, directing and producing in film and television, and "urged him, on speculation, to try his hand at writing a. Rockford script." (Id. at ¶¶ 16, 20.) Baer did so, and Urbanczyk passed his script on to Chase. (Id. at ¶ 22.) Chase read the script, considered it "interesting," and asked Urbanczyk whether Baer had any plans to be in Los Angeles. (Id. at ¶ 23.) After learning of Chase's interest, Baer traveled to Los Angeles, and the three met for lunch at The Ivy, in Santa Monica, California, on June 20, 1995. (Id. at ¶ 24.)

  At this lunch meeting, Chase explained to Baer that the remaining slots in the Rockford Files schedule had been filled, but commented on the script. (Defs.'s 56.1 Stmt. at ¶ 26.) Baer then told Chase stories involving crime in New Jersey, including stories about Baer's experiences and trials as a prosecutor. (Id.) It is undisputed that the stories Baer told were true, based in fact, and not the product of Baer's imagination. (Id.) In addition to these stories, Baer pitched another idea: to shoot "movies or television shows about crime in New Jersey and North Jersey mobs." (Id. at ¶ 28.) Page 5 Although Baer claims to have mentioned the DeCalvacante Family, the North Jersey Mafia, the City of Elizabeth and the Pulaski Skyway as locations, see Answer to Defs.'s Interrog. 10, it is undisputed that these concepts came with no "detail or drama." (Defs.'s 56.1 Stmt. at ¶ 28.) There was no discussion of payment at The Ivy, and the parties do not dispute that they did not enter into an agreement that day. (Id. at ¶ 30.) At the time of the lunch at The Ivy, Baer was unaware of Chase's previous work involving mob activity, set in New Jersey. (Id. at ¶ 29.)

  According to Baer, the oral agreement that is the subject of this lawsuit was made on three separate occasions: the first was by telephone during one of their first two or three conversations during the summer of 1995; the second was also by telephone and took place immediately prior to Chase's October 1995 visit; and the third was in person and entered into by the parties upon Chase's arrival in New Jersey in October of 1995. (Defs.'s 56.1 Stmt. at ¶ 54.) On each of these three occasions, Baer claims that the parties had the same exact conversation. (Id. at ¶ 55.) Chase offered to pay Baer in the form of a simple transaction: "you help me; I pay you." (Id. (quoting Baer Tr. at 129.)) Each time, Baer rejected Chase's offer, because Chase would be unable to pay Baer "for the true value of the services [Baer] was rendering." (Id. at ¶¶ 55-56 (quoting Baer Tr. at 129.)) Each time he rejected Chase's offer, Baer proposed the same counteroffer: "that I would perform the services while assuming the risk that if the show failed [Chase] would owe me nothing. If, however, the show succeeded he would remunerate me in a manner commensurate to the true value of my services." (Id. at ¶ 57 (quoting Baer Tr. at 137 and Answer to Defs.'s Interrog. 5.)) Baer has subsequently confirmed that this was the exact language that he used to make his counteroffer. (Defs.'s 56.1 Stmt. at ¶ 58; Baer Tr. at 137:2-13; 157:14-22.) However, he also testified that the agreement was made in the following manner: "I said `What we'll do is I'll take the risk. It's a long Page 6 shot this thing ever goes anywhere. I'll take the risk and if it ever does, then you take care of me in an appropriate manner at that time' and he said `Fine' and that's what we did."*fn3 (Defs.'s 56.1 Stmt. at ¶ 58; Baer Tr. at 133:7-12.) The alleged agreement was always and only oral (Defs.'s 56.1 Stmt. at ¶ 53), and contained no fixed term of duration (id. at ¶ 75.)

  The record fails to show any other discussion between Baer and Chase regarding the terms of the contract. First, there is no dispute that the meaning of "success of the show" was not discussed by Baer and Chase. (Defs.'s 56.1 Stmt. at ¶ 62.) According to the Plaintiff, the contingency depended on the success of the show, but the success contingency would be triggered when Chase himself profited. (Id. at ¶¶ 62-63; Pl.'s 56.1 Stmt. at ¶ 43.) However, Baer never told Chase that success would be defined this way or linked to his profits, if any. (Defs.'s 56.1 Stmt. at ¶ 63.) In addition, Baer has conceded that he never discussed with Chase that the agreement and his right to payment would continue as long as the show is a success. (Id. at ¶ 75.)

  Likewise, no price term or amount of compensation was specified in the agreement, no formula for compensation was ever discussed by the Plaintiff and Chase, and there was no discussion of whether payment would be continuing or a one-time fee. (Defs.'s 56.1 Stmt. at ¶ 68.) Baer and Chase never discussed the percentage of profits to which Baer would be entitled, who would make that determination, how that determination would be made, how Chase's profits or the profits of the show were to be defined, or whether Chase even expected to receive any portion of the show's Page 7 profits. (Id. at ¶ 70.) Baer admitted that his share of Chase's profits, his compensation, "would be something that David Chase and I would have worked out at the time had he honored his agreement." (Id. at ¶ 69 (quoting Baer Tr. at 151:17-19.)) With respect to the "true value" of Baer's services, Baer did not propose a mechanism for placing value on his services, or for determining what factors would be considered in making such an evaluation. (Defs.'s 56.1 Stmt. at ¶ 71.) In addition, Baer and Chase did not discuss when Baer's services would be valued, who would decide the true value, how it would be measured, or the elements of any such valuation. (Id. at ¶ 72.)

  In October 1995, Chase visited New Jersey for three days.*fn4 (Defs.'s 56.1 Stmt. at ¶¶ 37-38; Pl.'s 56.1 Stmt. at ¶ 29.) While in New Jersey, Baer introduced Chase to Koczur, Jones and Spirito, who provided Chase with information, material, and personal stories about their experiences with organized crime. (Defs.'s 56.1 Stmt. at ¶¶ 40, 42, 46.) In particular, Koczur served as a "tour guide," who, along with Baer, drove Chase to various locations in northern New Jersey. (Id. at ¶ 41.) At a lunch arranged by Koczur, Chase met with Spirito, who told true and sometimes personal stories involving loan sharking, a power struggle with two uncles involving a family business, and two individuals, Big Pussy and Little Pussy Russo. (Id. at ¶¶ 42, 44, 82-83.) Chase also met with Jones, a detective with the Union County Prosecutor's office, who had experience investigating organized crime. (Id. at ¶ 46.) Jones provided Chase with information, including facts about Morris Levy and the infiltration of MCA by organized crime, and access to wiretap tapes that had been entered into evidence at earlier criminal trials. (Id. at ¶¶ 46-50.) Baer does not dispute that virtually all of the ideas and locations that he "contributed" exist in the public record. (Id. at ¶ 80.) Page 8

 II. SUMMARY JUDGMENT STANDARD

  Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the moving party must first show that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict" for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The substantive law governing the dispute will determine which facts are material and only disputes over those facts `that ...


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