392 F.3d 609 (3rd Cir. 2004), 04-1655, Baer v. Chase

Docket Nº:04-1655.
Citation:392 F.3d 609
Party Name:Robert V. BAER, Appellant v. David CHASE; Chase Films Inc., A Delaware Corporation; John Does A-Z.
Case Date:December 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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392 F.3d 609 (3rd Cir. 2004)

Robert V. BAER, Appellant


David CHASE; Chase Films Inc., A Delaware Corporation; John Does A-Z.

No. 04-1655.

United States Court of Appeals, Third Circuit

December 21, 2004

Argued Oct. 28, 2004

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Robert V. Baer (argued), Wayne, Harley D. Breite, Wayne, Michael S. Kasanoff, Red Bank, for Appellant.

Peter L. Skolnick (argued), Michael A. Norwick, Lowenstein Sandler PC, Roseland, for Appellees.

Before SCIRICA, Chief Judge, and FISHER and GREENBERG, Circuit Judges.

GREENBERG, Circuit Judge.

This matter comes on before this court on Robert V. Baer's ("Baer") appeal from an order of the district court entered February 20, 2004, granting summary judgment to the defendants, David Chase and DC Enterprises, Inc. (together called "Chase"), pursuant to Federal Rule of Civil Procedure 56(c). This dispute centers on the creation and development of the well-known television series, The Sopranos. Through this action, Baer seeks compensation for what he perceives was his role in the creation and development of the popular and financially successful television series.


Chase, who originally was from New Jersey, but relocated to Los Angeles in 1971, is the creator, producer, writer and director of The Sopranos. Chase has numerous credits for other television productions as well. Before Chase met Baer, Chase had worked on a number of projects involving organized crime activities based in New Jersey, including a script for "a mob boss in therapy," a concept that, in part, would become the basis for The Sopranos.

In 1995, Chase was producing and directing a Rockford Files "movie-of-the-week" when he met Joseph Urbancyk who was working on the set as a camera operator and temporary director of photography. Chase mentioned to Urbancyk that he was looking for new material and for writers who could develop feature film screenplays that Chase later might re-write and direct. Urbancyk also overheard Chase say that the creators of The Rockford Files were looking to assign additional writers for their "movie of the week" project.

Urbancyk became the connection between Chase and Baer as a result of Urbancyk's long-time friendship with Baer and his knowledge of Baer's interest in pursuing a career in writing, directing and producing. Baer, who was a New Jersey attorney, recently had left his employment in the Union County Prosecutor's Office in Elizabeth, New Jersey, where he had worked for the previous six years.

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Urbancyk urged Baer to write a script for The Rockford Files. Baer did so and gave it to Urbancyk who passed it on to Chase. Chase considered Baer's work "interesting" and asked Urbancyk if Baer had any plans to be in Los Angeles. Upon hearing of Chase's interest, Baer flew to Los Angeles to meet with Chase.

Chase, Urbancyk and Baer met for lunch on June 20, 1995. At that time Chase informed Baer that he would be unable to use Baer's screenplay, as the remaining slots in The Rockford Files had been filled. The lunch continued, however, with Baer describing his experience as a prosecutor. Baer also pitched the idea to shoot "a film or television shows about the New Jersey Mafia." App. at 40. At that time Baer was unaware of Chase's previous work involving mob activity premised in New Jersey. At the lunch there was no reference to any payment that Chase might make to Baer for the latter's services and the parties agree that they did not reach any agreement on that day.

In October 1995, Chase visited New Jersey for three days. During this "research visit" Baer arranged meetings for Chase with Detective Thomas Koczur, Detective Robert A. Jones, and Tony Spirito who provided Chase with information, material and personal stories about their experiences with organized crime. Koczur served as a tour guide and drove Chase and Baer to various locations in northern New Jersey. Koczur also arranged a lunch between Chase and Spirito. Spirito 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. 1 Chase also met with Jones, a detective with the Union County Prosecutor's office who had experience investigating organized crime. Baer does not dispute that virtually all of the ideas and locations that he "contributed" to Chase existed in the public record.

After returning to Los Angeles, Chase sent Baer a copy of a draft of a Sopranos screenplay that he had written, which was dated December 20, 1995. Baer asserts that after he read it he called Chase and made various comments with regard to it. Baer claims that the two spoke at least four times during the following year and that he sent a letter to Chase dated February 10, 1997, discussing The Sopranos script. Baer ensured that Chase received the letter by confirming its arrival with Chase's assistant. On this appeal we accept Baer's allegations regarding his input into The Sopranos draft.

Notwithstanding his February 10, 1997 letter, at his deposition Baer claimed that he last rendered services to Chase in 1995. Thus, Baer's testimony included the following:

Q. During any of those conversations after October of 1995, [when Chase visited New Jersey] did you provide any further information to Mr. Chase other than in relation to the sexual assault?

A. Not really.

Q. No?

A. Not really. The screen play was done and there wasn't really any need for it at that point as far as I knew.

Q. So everything that you had done and to which you claim entitlement was done by the end of October 1995?

A. Yes in terms of assisting him in helping with this project that would be true.

App. at 343-44. 2 Notwithstanding this testimony, in Baer's later certification dated October 3, 2003, in opposition to Chase's motion for summary judgment he sought to clarify his deposition testimony, stating:

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117. I also sent him a letter dated February 10, 1997 discussing the Sopranos script prior to making a trip to Los Angeles. After sending the letter, I spoke with Chase's assistant, Kelly Kockzak, who confirmed that Chase had received it. This letter represents the last services I provided to Defendants. Most of my services were provided in 1995.

App. at 69.

Baer asserts that he and Chase orally agreed on three separate occasions that if the show became a success, Chase would "take care of" Baer, and "remunerate [Baer] in a manner commensurate to the true value of [his services]." App. at 113. According to Baer, he and Chase first made this oral agreement on the telephone during one of their first two or three conversations during the summer of 1995. The second occasion was on the telephone and occurred immediately prior to Chase's October 1995 visit to New Jersey. The third time the parties reached the agreement was in person when they met in New Jersey in October 1995.

Baer claims that on each of these occasions the parties had the same conversation in which Chase offered to pay Baer, stating "you help me; I pay you." App. at 112-13. Baer always rejected Chase's offer, reasoning that Chase would be unable to pay him "for the true value of the services [Baer] was rendering." Id. Each time Baer rejected Chase's offer he did so with a 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 113. Baer acknowledges that this counteroffer, which in these proceedings we treat as having become the parties' agreement, always was oral and did not include any fixed term of duration or price. There is no other evidence in the record of any other discussion between Baer and Chase regarding the terms of the contract. For purposes of the motion for summary judgment, Chase accepts Baer's version of the events as true and thus concedes there was an oral agreement to the extent that Baer sets it forth. Notwithstanding this agreement, insofar as we can ascertain, other than Baer's calls to Chase after he received the Sopranos script, the next time Baer heard anything from or about Chase was when he received a phone call from Detective Koczur telling him that Chase was in Elizabeth shooting The Sopranos. In fact, Chase has not paid Baer for his services.

On or about May 15, 2002, Baer filed a verified complaint against Chase in the district court and thereafter on May 2, 2003, Baer filed an amended verified complaint. Baer's amended complaint advanced ten claims: (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. Stat. Ann. § 56:4-1 (West 2001); and (10) tortious interference with prospective economic advantage. App. at 137-48. Baer subsequently withdrew the federal unfair competition claim. 3 Eventually

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Chase brought a motion for summary judgment under Federal Rule of Civil Procedure 56(c) alleging that there was no genuine issue as to any material fact and he was entitled to a judgment as a matter of law. Chase claimed that the alleged contract and implied contract were too vague, ambiguous and lacking in essential terms to be enforced and the statute of frauds barred the actions based on them. Moreover, Chase claimed that the statute of limitations barred the breach of quasi-contract quantum meruit claim. Finally, Chase alleged that each of Baer's six remaining...

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