Fontaine v. Home Box Office, Inc.

• Citation: 654 F. Supp. 298
• Decision Date: 03 December 1986
• Docket Number: CV 84-3457-FW (AAH).
• Parties: Stephen FONTAINE, an individual, Plaintiff, v. HOME BOX OFFICE, INC., Jarry Landreth, Eddie Kritzer and Joshua Perahia, Defendants. HOME BOX OFFICE, INC., a corporation, Cross-Claimants, v. Jarry LANDRETH, Eddie Kritzer, George Swade, Joshua Perahia, and "Joshua," Cross-Defendants.
• Court: U.S. District Court — Central District of California

654 F. Supp. 298

Stephen FONTAINE, an individual, Plaintiff, v. HOME BOX OFFICE, INC., Jarry Landreth, Eddie Kritzer and Joshua Perahia, Defendants.

HOME BOX OFFICE, INC., a corporation, Cross-Claimants, v. Jarry LANDRETH, Eddie Kritzer, George Swade, Joshua Perahia, and "Joshua," Cross-Defendants.

CV 84-3457-FW (AAH).

United States District Court, C.D. California.

December 3, 1986.

Franklin D. Ubell, of Jackson, Jones & Price, Newport Beach, and Stanley R. Jones, of Price, Gess & Ubell, Newport Beach, Cal., for plaintiff.

Latham & Watkins, Los Angeles, for defendant and cross-claimant Home Box Office.

Robert M. Mooney, Harbor City, for defendant Joshua Perahia.

Cohen & Luckenbacker, for defendant Eddie Kritzer.

ORDER, FINDINGS AND REASONS FOR DISMISSAL OF PENDENT STATE CLAIMS

HAUK, District Judge.

Introduction

On November 12, 1986, the Court of Appeals for the Ninth Circuit filed its Order granting a writ of mandamus for the limited purpose of directing the District Court to set forth its specific reasons for declining to exercise pendent jurisdiction over plaintiff Stephen Fontaine's State law claims for unjust enrichment and unfair competition, alleged in the Second and Fourth Counts of the First Amended Complaint.

Inasmuch as the undersigned Honorable A. Andrew Hauk, in assisting and filling in for Honorable Francis C. Whelan during a period when Judge Whelan needed help, made and entered on April 5, 1985, the "Order Re Motion Of Defendant Home Box Office, Inc. To Dismiss Second, Third And Fourth Counts Of Amended Complaint," dismissing the two pendent State claims of the First Amended Complaint with prejudice in Federal Court but without prejudice in State Court, and pursuant to the Ninth Circuit's writ of mandamus, I, Judge Hauk, set forth herewith a brief procedural and factual review of the above-entitled action and the specific findings and reasons justifying dismissal of plaintiff's two pendent State claims.

Procedural and Factual Background

On May 10, 1984, plaintiff Stephen Fontaine ("Fontaine") filed an original Complaint against defendants Home Box Office, Inc. ("HBO"), Jarry Landreth ("Landreth"), Eddie Kritzer ("Kritzer"), George Swade ("Swade"), and Joshua Perahia ("Perahia") (collectively "defendants"), alleging in five separate Counts (1) violation of the Lanham Act, 15 U.S.C. § 1051 et seq., especially 15 U.S.C. § 1125(a); (2) tortious deprivation of film credit; (3) unjust enrichment; (4) copyright infringement, ostensibly pursuant to 17 U.S.C. § 101 et seq., especially 17 U.S.C. § 501; and (5) unfair competition.

Defendant HBO, on July 27, 1984, filed a motion, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss each of the Counts of the Complaint on the ground that each Count failed to state a claim upon which relief can be granted. The District Court, Judge Whelan, held that facts necessary for a cause of action under the Lanham Act had sufficiently been alleged, but dismissed the Second Count for tortious deprivation of film credit without leave to amend, and dismissed the remaining Counts with leave to amend.

On December 26, 1984, HBO filed a Cross-Claim against Cross-Defendants Landreth, Kritzer, Swade, Perahia, and the rock musical group "JOSHUA," alleging claims for breach of contract, indemnity, contribution and declaratory relief.

On December 28, 1984, Fontaine filed his First Amended Complaint alleging again in the First Count violation of the Lanham Act, in the Second Count unjust enrichment, in the Third Count copyright infringement, and in the Fourth Count unfair competition.

The underlying factual allegations set forth in the First Amended Complaint include the following:

In August of 1982 Fontaine and other individuals, including defendant Perahia, referring to themselves as the musical group JOSHUA, recorded tracks later used to produce a record album. The album was entitled "The Hand Is Quicker Than The Eye." Fontaine performed most of the vocal tracks used on the album, including those of the song entitled "Broken Dream." Thereafter, defendants Swade and Perahia, and others, procured the production of a video tape performance of the song "Broken Dream." Although the vocal tracks played during the video performance of "Broken Dream" employed the voice of Fontaine as originally performed on the record album, a performer other than Fontaine mouthed or lip-synched Fontaine's vocal performance. HBO then aired the video on numerous occasions in interstate commerce, and defendants Landreth and Kritzer allegedly conspired with others to air the video to promote the JOSHUA group.

Based on these alleged facts, Fontaine claims in the First Count that defendants violated the Lanham Act, 15 U.S.C. § 1125(a), by willfully and intentionally misrepresenting the identity of the group JOSHUA and creating the false impression that the performer in the video who lip-synched Fontaine's voice was in fact Fontaine.

In the Second Count for unjust enrichment (alternatively described in the First Amended Complaint as quantum meruit), Fontaine claims that contrary to his expectations and entitlement, he was not compensated for the use of these services and voice tracks on "The Hand Is Quicker Than The Eye" album, but used by the defendants in the "Broken Dream" video.

In the Third Count for copyright infringement, Fontaine claims that he is the owner of a registered copyright on his vocal performances on "The Hand Is Quicker Than The Eye" album, and that such copyright is separate from and not subsumed as part of any copyright which exists for the song "Broken Dream." By producing the video performance of the song "Broken Dream", defendants are alleged to have infringed Fontaine's copyright.

Finally, in the Fourth Count, Fontaine claims that defendants engaged in unfair competition by "palming off" Fontaine's performance as that of another, thereby intentionally and fraudulently misleading the public. It is further alleged in the Fourth Count that defendants misappropriated credit due Fontaine and intentionally inflicted severe emotional distress upon him.

For remedial relief, Fontaine demanded damages in excess of one million dollars on each Count; punitive damages in the amount of $500,000; that defendants and their agents be permanently enjoined from infringing Fontaine's copyright; and that defendants pay to Fontaine the costs of suit and reasonable attorney's fees.

Defendant Swade has been dismissed from the action on the First Amended Complaint without prejudice and default has been entered against defendant Landreth.

On January 23, 1985, plaintiff Fontaine filed a Motion For Partial Summary Judgment as to the issue of liability of defendants HBO, Landreth and Perahia for violation of the Lanham Act, as alleged in the First Count.

On January 25, 1985, defendant HBO filed a Motion to Dismiss Counts Two, Three and Four of Fontaine's First Amended Complaint, again on the ground that pursuant to Fed.R.Civ.P. 12(b)(6), each such Count failed to allege facts sufficient to state a claim upon which relief can be granted.

Both Fontaine's Motion for Partial Summary Judgment and HBO's Motion To Dismiss were transferred from Judge Whelan and came on for hearing before Judge Hauk on March 25, 1985. By Order entered April 5, 1985, the District Court, Judge Hauk, denied Fontaine's Motion For Partial Summary Judgment, finding the existence of genuine issues of material fact under the First Count. In a separate Order Re Motion Of Defendant Home Box Office, Inc. To Dismiss Second, Third And Fourth Counts Of Amended Complaint, also entered April 5, 1985, Judge Hauk found that the Second Count for unjust enrichment and the Fourth Count for unfair competition failed to state causes of action for which relief could be granted. Judge Hauk further ruled that even if the First and Second Counts were properly pleaded, these Counts were pendent State law claims and should be dismissed with prejudice in Federal Court, but without prejudice to plaintiff's right to proceed with such claims in State Court. The Third Count for copyright infringement was also dismissed, but without prejudice, for failure to state a cause of action due to plaintiff's failure to allege facts concerning the co-authors' disposition of their undivided copyright interests in the joint work. Plaintiff was granted leave to amend the Third Count within thirty days of the Court's Order.

The April 5, 1985 Order dismissing the two pendent State claims has now become the subject of the instant Ninth Circuit writ of mandate.

Specific Findings and Reasons Justifying Dismissal Of The Pendent State Claims

After further analysis and consideration of the pertinent and relevant pleadings, motions, oppositions, points and authorities and papers filed herein, and good cause appearing,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. That the Court finds and concludes that pendent State claims may be dismissed with prejudice in Federal Court, provided the claimant (plaintiff) is afforded adequate opportunity to pursue these State law claims in a State Court with competent jurisdiction. Although in certain instances a Federal Court may have constitutional power to hear pendent State claims when the State and Federal claims arise "from the same nucleus of operative fact," the exercise of that power and the decision to dismiss pendent State claims is ordinarily a matter of complete discretion with the Federal Judge. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 627, 94 S.Ct. 1323, 1336, 39 L.Ed.2d 630 (1974); Wren v. Sletten Construction Co., 654 F.2d 529, 536 (9th Cir.1981).

A relevant, though not determinative, factor to be considered by the Federal Court in exercising its discretion is whether the State law claims would be barred by the statute of limitations if they were dismissed by the Federal Court....