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United States District Court, D. New Jersey

February 20, 2004.

ROBERT V. BAER, Plaintiff
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



  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.


  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


  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 might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Simmerman v. Corino, 804 F. Supp. 644, 649 (D.N.J. 1992) (quoting Anderson, 477 U.S. at 248).

  If the moving party can show that no genuine issue of material fact exists, the burden then shifts to the non-moving party to present evidence that a genuine issue of fact exists. Celotex Corp., 477 U.S. at 324. In determining whether a genuine issue of material fact exists, the Court must view the facts in the light most favorable to the non-moving party and extend all reasonable inferences to that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Stephens v. Kerrigan, 122 F.3d 171, 176-177 (3d Cir. 1997). "[A]n opponent may not prevail merely by discrediting the credibility of the movant's evidence; it must produce some affirmative evidence." Big Apple BMW v. BMW of N. Am., 974 F.2d 1358, 1363 (3d Cir. 1992). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an Page 9 element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

  In making this determination, the Court shall not "weigh the evidence and determine the truth of the matter," but only needs to determine whether a genuine issue necessitates a trial. Anderson, 477 U.S. at 249. In order to satisfy this standard, however, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . ." Matsushita, 475 U.S. at 586-87 (citations omitted). Instead, the non-moving party must prove beyond a "mere scintilla" of evidence that a genuine issue of material fact exists. Big Apple BMW, 974 F.2d at 1363. Similarly,"[a]n otherwise properly supported motion for summary judgment will not be defeated by the mere existence of some factual dispute between the parties," unless the dispute over those facts may affect the outcome of the lawsuit. Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995).

  The non-moving party may not simply rest on its pleadings, Celotex Corp., 477 U.S. at 324, nor may it rest on mere allegations, Anderson, 477 U.S. at 243. Likewise, "a party cannot rely upon self-serving conclusions, unsupported by specific facts in the record." Laresca v. Am. Tel. & Tel., 161 F. Supp.2d 323, 327 (D.N.J. 2001) (citing Celotex Corp., 477 U.S. at 322-23). Unsworn arguments of counsel and "unsupported allegations in [the non-moving party's] memorandum or pleadings are insufficient to repel summary judgment." Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). In addition, a non-moving party may not "replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit" to avoid summary judgment. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). Rather, the party opposing summary judgment must present actual, admissible evidence that establishes a genuine issue of material fact. Celotex Corp., 477U.S. at 324, Anderson, 411 U.S. at 243, Lujan, 491 U.S. at 888-89. Page 10


  A. Plaintiff's Breach of Contract Claims

  The Plaintiff has alleged two breach of contract claims: breach of an express contract and breach of implied contract. In Count I of the Complaint, the Plaintiff claims that he and Chase "entered into a binding oral agreement" regarding compensation for "his role in the creation and development of [The Sopranos]". (Compl. at ¶ 26.) Count II of the Complaint alleges that Chase's "conduct in accepting Plaintiffs services indicated that Defendant assented to be bound in the form of an implied contract, as the circumstances surrounding the parties' relationship support the finding of a mutual agreement and an intent to promise." (Id. at ¶ 32.) "[C]ontracts implied in fact are no different than express contracts, although they exhibit a different way or form of expressing assent than through statements or writings." Wanaque Borough Sewerage Auth. v. W. Milford Mun. Auth., 144 N.J. 564, 574 (N.J. 1996). Because the Defendants have assumed the existence of a contract as the Plaintiff has described it for the purposes of this motion, (see Defendants' Brief in Support of Motion for Summary Judgment (hereinafter "Defs.'s Brief) at 1-2 and Defs.'s Reply Brief at 2), there is no issue regarding formation of the contract or assent, and the Plaintiffs distinction between express and implied contracts is irrelevant.

  A contract is unenforceable where "the parties do not agree to one or more of the essential terms of a purported agreement." MDC Inv. Prop., L.L.C. v. Marando, 44 F. Supp.2d 693, 698 (citing Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (N.J. 1992)). Moreover, "[a] contract is unenforceable for vagueness when its terms are too indefinite to allow a court to ascertain with reasonable certainty what each party has promised to do." LoBosco. v. Kure Eng'g Ltd., 891 F. Supp. 1020, 1025 (D.N.J. 1995) (citing Weichert, 128 N.J. at 435). "The amount of compensation, the Page 11 `price term,' is an essential term of any contract." Id. at 698-99. A contract that does not contain a price term must contain an agreement as to the manner or method of determining compensation; otherwise it is invalid. Id. at 699. "With regard to contracts for services in return for a percentage of some yet-to-be-determined number such as profits, sales, etc., the courts look to whether there are certain dates of commencement and termination." LoBosco, 891 F. Supp. at 1026.

  The contract as articulated by the Plaintiff lacks essential terms, and is vague, indefinite and uncertain; no version of the alleged agreement contains sufficiently precise terms to constitute an enforceable contract. First, the agreement as set forth by the Plaintiff does not contain a price term or amount of compensation, an essential term. See MDC, 44 F. Supp.2d at 699. According to the Plaintiff, the counteroffer that was accepted by Chase on all three occasions was exactly as follows: "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." (Answer to Defs.'s Interrog. 5; Baer Tr. at 137:2-13; 157:14-22.) He also stated: "I'll take the risk and if [the show] ever [goes anywhere], then you take care of me in an appropriate manner at that time' and he said `Fine' and that's what we did." (Baer Tr. at 133:7-12.) No amount of compensation was specified.

  Further, the contract does not specify the manner or method of calculating compensation. The Plaintiff admitted that "[a]s to the manner of compensation, we did not specify a formula, other than that David Chase would compensate me in a manner commensurate to the true value of my services." (Answer to Defs.'s Interrog. 5;Baer Tr. at 155:5-14.) In addition, the Plaintiff and Chase did not discuss when the "true value" of his services would be considered (Baer Tr. at 157:23-158:2), who would determine what the "true value" was (Baer Tr. at 158:3-5), how the "true value" was to Page 12 be measured (Baer Tr. at 158:6-8), or what elements would go into such an evaluation (Baer Tr. at 158:9-12). The Plaintiff and Chase did not discuss whether ideas "pitched" at the meeting at The Ivy (admittedly made before the formation of the contract) would be used in evaluating the "true value" of his services, or whether Chase would have to pay for those "contributions" at all.*fn5 (Baer Tr. at 159:19-160:2.) According to the Plaintiff, he and Chase agreed to determine the amount of compensation at a later time. (See Baer Tr. at 151:15-19.) This renders the contract unenforceable. See MDC, 44 F. Supp.2d at 699.

  In addition, Baer has testified that there was no discussion or agreement as to the meaning of "success" of The Sopranos. (Baer Tr. at 144:4-6; 150:16-18.) The Plaintiff instead assumed that "[s]uccess is understood we were talking about payment, so obviously we were talking about monetary success of the show." (Baer Tr. at 144:10-15.) The Plaintiff also stated that although his compensation depended upon the success of the show, the success of the show and Chase's success were interrelated. (Baer Tr. at 143:6-12.) Nevertheless, in Baer's opinion, success was "that point at which David Chase, the individual with whom I contracted, made a profit directly from the profits of the show." (Answer to Defs.'s Interrog. 22; see also Baer Tr. at 150:4-7.) This meaning of success was not discussed with Chase, but, according to Baer, was "certainly understood." (Baer Tr. at 149:18-150:3.) He conceded, however, that if Chase were "paid a zillion dollars to produce a show that was a bomb, then I wouldn't be entitled to any of it." (Baer Tr. at 144:1-3.) Likewise, the manner of compensation was not discussed. The Plaintiff explained that he Page 13 understood the arrangement to involve money-"when I said' compensation' or whatever word I used at that time it was understood that it would be money." (Baer Tr. at 133:25-134:4.) Although Baer admitted that Chase did not use the word money, (Baer Tr. at 133:23-24), he claims that "it was understood by both parties" that money would be involved. (Baer Tr. at 134:6-10.) Baer conceded that it was possible that "payback" could take the form of becoming a writer for the show. (Baer Tr. at 134:18-25; 135:17-25.) He stated: "There are a million of possibilities but at a minimum, it would involve compensation. If David Chase wanted me to do other things for the show, that would be fine." (Baer Tr. at 134:25-135:3.)

  Plaintiff has also admitted that he and Chase did not discuss how either his profits or the profits of the show were to be defined (Baer Tr. at 151:6-9), who would define them (Baer Tr. at 151:10-11), what form or "profits" they would use, i.e., gross profits, adjusted gross profits, or net profits (Baer Tr. at 151:12-16), or whether Chase would even receive profits from the show, (Baer Tr. at 151:12-16.) Similarly, Baer and Chase never discussed the percentage of profits to which Baer would be entitled (Baer Tr. at 152:19-21), who would determine that percentage (Baer Tr. at 152:25-153:1), or how the percentage would be determined (Baer Tr. at 153:2-4.) Baer admits that determining how his share of profits "would be something that David Chase and I would have worked out at the time he honored his agreement." (Baer Tr. at 151:15-19.)

  Finally, the contract does not contemplate dates of commencement or termination. According to the Plaintiff, the contract will continue to exists as long as the show is a success. (Baer Tr. at 155:15-20.) The Plaintiff maintains that the terms of the contract entitle him to continuing payment for a long as The Sopranos runs. (Baer Tr. at 155:21-156:17.) Although Baer and Chase never discussed continued payment (Baer Tr. at 155:25-156:4), or whether the agreement would Page 14 apply to success in re-runs or syndication (which would presumably reveal success after the series itself ended), Baer maintains that his right to continued payment "[is] obvious in the language of the contract itself." (Baer Tr. at 155:25-156:1.) As articulated by the Plaintiff, this is a contract for services in return for a percentage of a yet-to-be-determined number, in this case profits, and the Court will look to whether there are certain dates of commencement and termination. Lo Bosco, 891 F. Supp at 1026. Having no such limiting terms, and containing no guidance as to when the contract begins and ends, the Court finds that the contract is vague and unenforceable.

  Citing Lo Bosco, 891 F. Supp at 1025-26, the Plaintiff has asked this Court to "plug gaps" and "clarify [the] ambiguities" in the alleged contract. (Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment (hereinafter "Pl's Brief')at 39.) The Court concludes, however, that the essential terms of the contract can not be determined, that the alleged agreement is too indefinite to allow the Court to ascertain with reasonable certainty what each party agreed to do, and that the contract can not be enforced. See, MDC, 44 F. Supp.2d at 698-99; Bergin, 2000 WL 223833 at *4. The Plaintiff is not merely asking the Court to simply "plug gaps;" he is asking it to construe essential terms where there are none, and then write the contract for the parties. The Court will not do so. Nor will the Court import meaning to the contract from the testimony of John Agoglia ("Agoglia"), as the Plaintiff has requested.*fn6 Agoglia is the Plaintiff's "damages expert," and Court rejects Plaintiff's attempts use his deposition testimony as evidence of liability. The Court finds that Agoglia's testimony has no relevance to the questions of formation or enforceability of the purported contract. Plaintiff named Agoglia to be an expert witness on damages and his opinions are wholly Page 15 beside the point.

  Plaintiff further attempts to prevent summary judgment by pointing out that a failure to calculate damages "with exactitude will not bar relief," and that calculation of damages "is a jury question based `upon reasonable inferences and estimates,' such as will be provided by Mr. Agoglia after completion of the damages phase of discovery." (Pl's Brief at 41 (quoting V.A.L. Floors v. Westminster Cmtys., Inc., 355 N.J. 416, 427 (N.J. 2002).) The calculation of damages, however, is not relevant to the motion currently pending before this Court. Summary judgment is appropriate in this case because the contract does not contain essential terms and is too indefinite to be enforced, not because the Plaintiff failed to calculate damages. Deferring to a jury to calculate damages does nothing to change the fact that the contract as articulated by the Plaintiff himself lacks, a price term and manner or method of calculating compensation, rendering it unenforceable. See MDC, 44 F. Supp.2d. at 698-99 (concluding that "[t]he amount of compensation, the `price term,' is an essential term of any contract," and "[i]n the absence of an agreement as to the manner or method of determining compensation the purported agreement [is] invalid").

  Examining each term individually and at the contract in its entirety, the alleged oral agreement as described by the Plaintiff is unenforceable. It lacks essential terms, does not permit the Court to ascertain with reasonable certainty what each party has promised to do, and is not sufficiently definite to give rise to contractual obligations. The factual disputes raised by the Plaintiff do not affect the outcome; thus, Plaintiff has not identified genuine issues of material fact. The Defendants's motion for summary judgment is granted as to Counts I and II.

  B. Plaintiff's Quasi-Contract Claim

  Count III of the Complaint alleges a breach of quasi-contract and seeks damages for Page 16 Defendants's unjust enrichment. (Compl. at ¶¶ 37-40.) The Plaintiff correctly notes that the dispute before the Court "centers on when the limitations period accrues, and whether Plaintiffs claim has been filed within six years of the accrual date." (Pl.'s Brief at 49.) The Court concludes that the statute of limitations bars the Plaintiff's quasi-contract claim and dismisses this claim in its entirety.

  The substantive right to quasi-contractual relief for services rendered "stems from the rendition of services." Miller v. Ed. of Chosen Freeholders of Hudson County, 10 N.J. 398, 409 (N.J. 1952). Quasi-contractual recovery for the provision of services is appropriate "when a party confers a benefit with a reasonable expectation of payment." Weichert, 128 N.J. at 437. As with contract claims, under New Jersey law, a quasi-contract cause of action is governed by a six year statute of limitations. N.J.S.A. 2A: 14-1; Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424, 473 (D.N. J. 1999); Kopin v. Orange Prods., Inc., 297 N.J. Super 353, 374 (App. Div. 1997).

  The Plaintiff's quasi-contract claim accrued, if at all, when his final services were rendered. In deposition, the Plaintiff admitted that all of his services were rendered by the end of October, 1995. (Baer Tr. at 242:9-13.) In an effort to save this claim, the Plaintiff now states in his opposition papers and accompanying certification that he "was clearly, and understandably mistaken. He was thinking in terms of the overwhelming majority of his services." (Pl.'s Brief at 49, referring to Baer Cert. at ¶ 117.) The Plaintiff points to a letter dated February 10, 1997 to Chase "discussing the Sopranos script" which "represents the last services I provided to Defendants." (Baer Cert. at ¶ 7.)

  The Court rejects the Plaintiff's alteration of his testimony, however, and the statement that is services were rendered by the end of October 1995 stands. See Martin v. Merrell Dow Pharm., 851 F.2d 703, 705 (3d Cir. 1988); MDC, 44 F. Supp.2d at 699. "Where the witness was confused Page 17 at the earlier deposition or for some other reason misspoke, the correcting or clarifying affidavit may be sufficient to create a material dispute of fact." Martin, 851 F.2d at 705. However, where the changed testimony is regarding a fact of "considerable importance" and is "the subject of repeated questioning," it is permissible for a district court "to disregard a subsequent affidavit for purposes of determining whether there [is] a material dispute of fact." Id. at 705-06. As the Third Circuit explained, "the objectives of summary judgment would be seriously impaired if the district court were not free to disregard the conflicting affidavit." Id. at 706.

  The Court finds that in this case, the Plaintiff's deposition testimony regarding the date that performance was complete was a fact of crucial importance to his case, his performance and the February 10, 1997 letter were the subject of extensive questioning, and the Plaintiff had access to the relevant information at the time of his deposition. See id. In addition, as in Martin, the Plaintiff has not provided the Court with a sufficient explanation for the "misstatement." Only now, in response to the Defendants's motion for summary judgment, has the Plaintiff submitted this contradictory statement. Given those circumstances, the Court will not consider the Plaintiff's certification. The Plaintiffs services are deemed rendered as of October 1995, the cause of action is barred by the statute of limitations, and the Defendants's motion for summary judgment as to Count III is granted.

  C. Plaintiff's Common Law Fraud Claim

  In Count IV of the Complaint, the Plaintiff alleges common law fraud. (Compl. at ¶¶ 41-48.) "A cause of action for misrepresentation amounting to actual legal fraud consists of `a material representation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment.'" Page 18 Capano v. Borough of Stone Harbor, 530 F. Supp. 1254, 1264 (D.N.J. 1982); Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (N.J. 1997). Reliance must be reasonable. Gennari, 148 N.J. at 610. A fraud action can not be based on matters that are to take place in the future. Capano, 530 F. Supp at 1264. Likewise, "[s]tatements as to future events, expectations, or intended acts, do not constitute misrepresentations despite their falsity, if the statements were not made with the intent to deceive." Notch View Assocs., A.D.S. v. Smith, 260 N.J. Super. 190, 202-03 (Law Div. 1992); see also Capano, 530 F. Supp. at 1264-65.

  Plaintiff's testimony at deposition reveals that the subject of Chase's promise concerned future events, intentions and expectations. He testified that he and Chase entered the oral agreement for the final time when Chase arrived in New Jersey in October 1995. (Baer Tr. at 123:22-124:6; Answer to Defs.'s Interrog. 5.) The Plaintiff stated that although he was "hopeful" that information and contacts he produced to Chase would be used in the show, at the point in which they entered the agreement, and he did not know that Chase would find anything of value on the trip (Baer Tr. at 138:16-25; 142:5-25). Moreover, the Plaintiff has not made a showing that Chase had the intent to deceive. Notch View, 260 N.J. Super, at 202-03. Finally, the underlying promise has already been deemed vague, indefinite and unenforceable, and the Plaintiff has not shown that his reliance was reasonable. See Capano, 530 F. Supp. at 1264. The Defendants's motion for summary judgment is granted, and the Plaintiff's common law fraud claim is dismissed.

  D. Plaintiff's Equitable Fraud Claim

  The Plaintiff asserted a claim of equitable fraud against the Defendants in Count V and alleged that Chase "made the misrepresentations and the omissions detailed herein, with the intention that Plaintiff rely thereon," and that "Plaintiff actually and detrimentally relied on [those] false Page 19 representations, resulting in loss." (Compl. at ¶¶ 50-52.) To succeed on a claim for equitable fraud, a plaintiff must establish proof each element required to prove legal fraud, except that the element of scienter need not be proven. Bonnco. Petrol, Inc. v. Epstein, 115 N.J. 599, 609 (N.J. 1989). Having already determined that the representations made involve expectation and future events and do not relate to past or presently existing fact, and having further concluded that Plaintiff has not established the elements of his common law fraud claim, the Court finds that the Plaintiff has not established the requisite proofs from his equitable fraud claim. In addition, the Plaintiff does not seek equitable relief. See Foont-Freedenfeld Corp. v. Electro-Protective Corp., 126 N.J. Super. 254, 257 (App. Div. 1973). The Defendants's motion for summary judgment is granted as to Count V.

  E. Plaintiff's Negligent Misrepresentation Claim

  Count VI of the Complaint alleges that Chase made material misrepresentations and negligently provided the Plaintiff with false information. (Compl. at ¶ 54.) A plaintiff asserting a negligent misrepresentation claim "must prove that the defendant negligently made an incorrect statement, upon which the plaintiff justifiably relied." Alexander v. Cigna Corp., 991 F. Supp. 427, 440 (D.N.J. 1998). A negligent misrepresentation claim also must be based on statements of fact, not predictions of future events. Id. at 440-41. "The element of reliance is the same for fraud and negligent misrepresentation." Kaufman v. I-Stat Corp., 165 N.J. 94, 109-10 (N.J. 2000).

  The court has already determined, however, that Chase's statements are nothing more than predictions of the future, not statements of fact; the Plaintiff's own deposition testimony supports such a finding. (See Baer Tr. at 138:16-25; 142:5-25.) Baer's self-serving conclusion that "Defendant's representations were statements of fact, not predictions of the future or mere opinion" (Pl.'s Brief at 56), is unsupported by specific facts in the record, see Laresca, 161 F. Supp.2d at 327, Page 20 and is not substantiated by admissible evidence. In addition, the Plaintiff has not provided the Court with evidence that he justifiably relied on this unenforceable, vague and indefinite contract, which the Court has already held is unenforceable. The Plaintiff has not established any genuine issues of material fact, and the Defendants's motion for summary judgment of the Plaintiff's negligent misrepresentation claim is granted and the claim is dismissed.

  F. Plaintiff's Breach of Fiduciary Duty Claim

  Count VII alleges a breach of a fiduciary duty. (Compl. at ¶ 63.) The Plaintiff contends that Chase owed him "a fiduciary duty to deal with him truthfully and honorably, and to employ reasonable care to avoid misleading Plaintiff." (Id. at ¶ 61.) According to the Plaintiff, there existed a "relationship of trust and confidence" that developed because "Plaintiff accepted Defendant Chase's word that Plaintiff would be appropriately compensated for his role in the creation of The Sopranos, so there was no need for a written agreement." (Id. at ¶ 60.) The Plaintiff further claims that "Defendant knew or should have known that there existed a special relationship of trust and confidence between Plaintiff and Defendant, especially given that Plaintiff worked without compensation, in full reliance upon his oral contract with Defendant." (Id. at ¶ 62.)

  "The essentials of a confidential relationship are a reposed confidence and the dominant and controlling position asserted by one side or party such that circumstances make it certain that the parties do not deal on equal terms." Alexander, 991 F. Supp at 437 (citation and internal quotations omitted); see also F.G. v. MacDonell, 150 N.J. 550, 563 (N.J. 1997) ("The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position."). Fiduciary duties do not arise in ordinary commercial business transactions; a duty of care does not exist by virtue of the existence of a contract between two parties. Alexander, 991 Page 21 F. Supp at 438 (citing Int'l Minerals and Min. v. Citicorp, N. Am., 736 F. Supp. 587, 597 (D.N.J. 1990) ("[w]here a party does not owe another a duty of care absent the existence of a contract, a separate duty of care cannot arise simply by virtue of the existence of the contract.")).

  The Court finds that there is no evidence to support the existence of a fiduciary relationship. In support of his claim, the Plaintiff makes self-serving conclusions and rests his argument on mere allegations, but has failed to submit admissible evidence that Chase was under a duty to act for or give advice to him, that the relationship was something more than that of an ordinary commercial business transaction, or that Chase exercised domination and control over him, and Chase's experience in the industry, without more, will not suffice. Similarly, the fact that Baer may have worked without compensation does not give rise to a fiduciary relationship. The Plaintiffs own deposition testimony belies his allegations that a fiduciary relationship existed. Specifically, he testified that Chase fully accepted without alteration all of the terms of his counteroffer, not once, but three times. (Baer Tr. at 133:7-17; 137:10-13; Answer to Defs.'s Interrog. 5.) He also testified that "the issue of a writing never arose," that he proposed the arrangement that made payment contingent on the success of the show, and neither he nor Chase suggested that the arrangement be put in writing (Baer Tr. at 350:7-21). The Defendants's motion for summary judgment is granted.

  G. Plaintiff's Unfair Competition and Misappropriation Claim

  The Plaintiffs remaining claim in Count IX alleges that the Defendants "violate[ed] Plaintiff's generally recognizable right not to have his skills, efforts, contributions, time, and labor, misappropriated by another." (Compl. at ¶ 70(d).) The Plaintiff claimed that his "contributions were both innovative and original," and that they were made in confidence to Chase. (Id. at ¶¶ 71-72.) The unfair competition and misappropriation claims were pleaded as one count in the Complaint and Page 22 will therefore be treated together by the Court.

  Under New Jersey law, a cause of action for a misappropriation of ideas requires proof that an idea is "(1) novel; (2) made in confidence; and (3) it was adopted and made use of [by the defendant in connection with his own activities]." Duffy v. Charles Schwab & Co., Inc., 123 F. Supp.2d 802, 808 (D.N.J. 2000) (quoting Flemming v. Ronson Corp., 107 N.J. Super 311, 317 (Law Div. 1969)). Unfair competition is a business tort that "consists of the misappropriation of one's property by another-or property which has some sort of commercial or pecuniary value." Id. at 815 (quoting N.J. Optometric Ass'n v. Hillman-Kohan Eyeglasses, Inc., 144 N.J. Super. 411, 427-28 (Ch. Div. 1976)). "A prerequisite to an act of unfair competition is that one party misappropriates another's property." Id. at 816. Although the Duffy court explained that unfair competition "is an amorphous area of jurisprudence" and "knows of no clear boundaries," 123 F. Supp.2d at 815 (quoting Hillman-Kohan, 144 N.J. Super at 427), an idea will not be protected if it is not proven to be novel, id. at 816. Whether an idea is novel is a matter of law for the Court to decide. Id. at 809.

  "[T]o qualify as a novel idea worthy of protection, an idea must demonstrate innovation, originality, or innovation. An idea will not satisfy this requirement if it is not significantly different from, or is an obvious adaption or combination of ideas in the public domain." Duffy, 123 F. Supp.2d at 810. An adaptation or combination of ideas can be deemed novel "if the adaptation or combination would lead to a significantly new and useful result." Id. Factors that can be considered in deciding whether an idea is novel include the idea's specificity, commonality, originality, commercial availability, obviousness, and secrecy. Id.

  This Court finds that, as a matter, of law, the Plaintiff's ideas are not novel. First, the ideas that he seeks payment for are exist in the public domain, defined by Baer as "something available Page 23 to the public." (Baer Tr. at 355:4-10.) In particular, Baer testified that all of the locations identified to Chase, including the City of Elizabeth, the Pulaski Skyway, Centanni's Meat Market, and the nearby topless bar, exist in the public record, and are real. (Baer Tr. at 355:4-12.) In addition, he admitted that the story about Morris Levy and MCA existed in the public record and was the subject of a book titled Stiffed (Baer Tr. at 355:20-22, 357:10-16), that "Big Pussy" and "Little Pussy" Russo were real people (Baer Tr. at 355:23-25), and that the DeCavalcante family and organized crime exist in New Jersey (Baer Tr. at 356:6-10). In addition, the wiretap tapes are factual, comprised of conversations that actually took place, and part of the public record, having been played at Morris Levy's criminal trial. (Jones Tr. at 137:13-138:10.)

  In addition, the Plaintiff's ideas allegedly misappropriated are not original. The ideas and stories that he seeks compensation and credit for are not his stories; they were actually told to Chase by "associates" of the Plaintiff. In particular, the Plaintiff seeks compensation for Spirito's story of rivalry with his uncles in the aftermath of his father's death, that Koczur's account to Chase that many waste management companies were alleged to be involved with organized crime, Spirito's story of his experiences with a "loan shark" and Jones's description of the way in which organized crime uses loan shark debts to take over a business, Jones's description of the operation of "cutout" schemes used by organized crime, Koczur's information regarding the involvement of the DeCavalcante crime family in Saint Anthony's Church in Elizabeth, and a story told to Chase by Jones about Morris Levy's horse farm. (See Answer to Defs.'s Interrog. 10(4,) (7), (8), (9), (11), and (12).) The record reveals that these stories were not Baer's, but instead, were told to Chase by Spirito, Koczur and Jones themselves. (See Baer Tr. at 356:12-17, 357:9-358:9.) These ideas were not, original to Baer, and are not novel as a matter of law. Page 24

  Although the Plaintiff has conceded that the locations, stories and information either existed in the public domain or came from one of his "associates," he maintains that he is entitled to recover because in dealing with Spirito, Jones and Koczur, he decided what would valuable for Chase to hear (see, e.g., Baer Tr. at 231:15-232:5; 233:11-21), and suggested to Chase that he use the material. Essentially, the Plaintiff argues that the fact that stories, information, material, were conveyed by others does not limit his claim. The Court does not agree. The Plaintiff has not has not adduced evidence that his adaptation and combination of ideas in the public domain leads to a significantly new and useful result, see Duffy, 123 F. Supp.2d 810; whether Chase had prior knowledge of the information, as the Plaintiff has argued, is irrelevant. In addition, the bases that the Plaintiff has articulated for deeming his combination of ideas goes more to the idea's expression than to the idea itself, and expression is not entitled to protection under state misappropriation law. See id. at 812 & n.5. The information provided to Chase was not novel as a matter of law.

  The Plaintiff further states in his brief that when examined in the aggregate, his ideas "are clearly novel as a matter of law," and that "Plaintiff has established `absolute novelty.'" (Pl.'s Brief at 46, 57.) However, these conclusory statements, are unsupported by facts in the record, and do not create a genuine issue of material fact. Further in support of his position, the Plaintiff proffers testimony and opinions from Agoglia, the Plaintiff's damages expert, regarding evaluation of an idea's "contribution to the whole" and suggests that the Plaintiffs ideas be examined in the aggregate, "the way originality occurred in the instant case." (Pl.'s Brief at 44-45.) The Court does not find Agoglia's testimony relevant or helpful, and his testimony does not raise any issues of material fact. As the Plaintiff's damages expert, the Court rejects his conclusory testimony regarding liability. Viewing the evidence in the light most favorable to the Plaintiff, the Court finds that there Page 25 are no genuine issues of material fact, and grants the Defendants's motion for summary judgment on Count IX.

  H. Plaintiff's Tortious Interference Claim

  The final count in the Complaint, Count X, alleges that Chase tortiously interfered with the Plaintiff's prospective economic advantage. The Plaintiff claims that his "contributions to the creations and development of The Sopranos have created a protectable interest of prospective economic advantage on the part of Plaintiff." (Compl. at ¶ 76) (italics added). In "failing to both compensate and credit Plaintiff for said creative contributions, Defendant has intentionally interfered with Plaintiff's prospective economic advantage without justification, thereby establishing malice on the part of Defendant." (Id. at ¶ 77.)

  "To establish tortious interference with an existing contract, a plaintiff must demonstrate an existing contractual relationship and the intentional interference with that relationship." Woods Corporate Assocs. v. Signet Star Holdings, 910 F. Supp. 1019, 1031 (D.N.J. 1995). A plaintiff is required to show that the defendant intended to interfere with the contract of the particular plaintiff. See id. at 1032. The Plaintiff has stated that no contractual relationship with a third party ever came into being, because Chase failed to credit his participation in developing The Sopranos. (Answer to Defs.'s Supplemental Interrog. 10.) The Plaintiff further maintains that "[a] proper crediting would have created a `reasonable probability' for `prospective economic gain.'" (Id.) Because of this interference, Plaintiff claims, he was prevented from having "many prospective relationships with many'third parties.'" Id.

  A plaintiff is not entitled to relief for tortious interference for the reasonable probability of prospective economic gain. The standard instead requires that there be an existing contractual Page 26 relationship, see Woods, 910 F. Supp. at 1032, and the Plaintiff has already conceded that none existed. Thus, the Plaintiff has failed to establish the existence of a contractual relationship, an element essential to his case. See Celotex Corp., 477 U.S. at 322. Summary judgment in the Defendants's favor is appropriate, and this claim is dismissed.


  For the reasons stated in this opinion, and viewed in the light most favorable to the Plaintiff, the Court concludes that no genuine issues of material fact exist, the motion for summary judgment is granted, and the Plaintiff's complaint is dismissed with prejudice in its entirety. An appropriate order accompanies this opinion.

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