Bassett v. Mashantucket Pequot Museum and Research

• Decision Date: 06 August 2002
• Docket Number: No. Civ.A. 3:96 CV 1947(CFD).,Civ.A. 3:96 CV 1947(CFD).
• Citation: 221 F.Supp.2d 271
• Parties: Debra BASSETT d/b/a Bassett Productions, Bassett Entertainment Corp., Plaintiffs, v. MASHANTUCKET PEQUOT MUSEUM AND RESEARCH CENTER INC., et al. Defendants.
• Court: U.S. District Court — District of Connecticut

221 F.Supp.2d 271

Debra BASSETT d/b/a Bassett Productions, Bassett Entertainment Corp., Plaintiffs, v. MASHANTUCKET PEQUOT MUSEUM AND RESEARCH CENTER INC., et al. Defendants.

No. Civ.A. 3:96 CV 1947(CFD).

United States District Court, D. Connecticut.

August 6, 2002.

James C. Riley, Whitman, Breed, Abbott & Morgan, Greenwich, CT, Rodney E. Gould, Richard A. Goren, Ellen Rappaport Tanowitz, Rubin, Hay & Gould, P.C., Framingham, MA, for Plaintiff.

David S. Williams, Jo-Ann M. Shyloski, Brown, Jacobson, Tillinghast, Lahan & King, Norwich, CT, Elizabeth Conway, Mashantucket, CT, Edward Wood Dunham, Erika L. Amarante, Wiggin & Dana, New Haven, CT, Robert D. Tobin, Tobin, Carberry, O'Malley, Riley & Selinger, New London, CT, for Defendants.

RULING ON MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT

DRONEY, District Judge.

I. Background

The plaintiffs, Debra Bassett (doing business as Bassett Productions) and Bassett Entertainment Corporation, bring this action alleging that the defendants violated state and federal law with regard to the production of a film based on the 1636-38 Pequot War.¹ On July 20, 1998, the Court granted the defendants' motion to dismiss the plaintiffs' First Amended Complaint. The plaintiffs subsequently appealed, and the Second Circuit affirmed in part, vacated in part, reversed in part, and remanded. See Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343 (2d Cir.2000).

The plaintiffs' First Amended Complaint named as defendants the Mashantucket Pequot Tribe (the "Tribe"), the Mashantucket Pequot Museum & Research Center (the "Museum"), Theresa Bell, and Jack Campisi. That complaint alleged copyright infringement, breach of contract, and various Connecticut state law torts. The Court dismissed the copyright claims against the Tribe and the Museum for lack of subject matter jurisdiction, dismissed the state law claims against the Tribe pursuant to the doctrine of tribal immunity, and dismissed the remaining claims against the Museum and all of the claims against Bell and Campisi upon finding the Tribe to be an "indispensable party" under Fed.R.Civ.P. 19(b).

The Second Circuit concluded that the Court had subject matter jurisdiction over the plaintiffs' copyright claims against the Tribe and Museum as such claims "arise under" the Copyright Act pursuant to 28 U.S.C. § 1338(a). However, the Second Circuit affirmed the Court's dismissal of the copyright claims against the Tribe based on the doctrine of tribal immunity from suit, holding that "[n]othing on the face of the Copyright Act purports to subject tribes to jurisdiction of the federal courts in civil actions brought by private parties ... and a congressional abrogation of tribal immunity cannot be implied." Id. at 357.

The Second Circuit disagreed with the Court's holding that the Tribe was an indispensable party and thus vacated the Court's dismissal under Fed.R.Civ.P. 19(b) of the plaintiffs' copyright, tort, and contract claims against the Museum, Bell, and Campisi. See id. at 358-60. The Second Circuit reversed the dismissal of the copyright claim for an injunction against the Museum and remanded for further consideration the plaintiffs' claims for damages in copyright and tort against the Museum, Bell, and Campisi, and the claim for contract damages against the Museum. See id.

Following the Second Circuit's ruling, the plaintiffs filed a Second Amended Complaint. In this complaint, the plaintiffs recast their claims against the "Mashantucket Pequot Museum and Research Center" to reflect its being sued as the "Mashantucket Pequot Museum and Research Center, Inc., a Connecticut corporation" (the "Corporation"), and the "Mashantucket Pequot Museum and Research Center, an unincorporated association" (the "Association"). The Second Amended Complaint also named as defendants the following individuals as "Officers and/or Directors of the Mashantucket Pequot Museum and Research Center and/or Mashantucket Pequot Museum and Research Center, Inc." (the "Directors"): Richard A. Hayward, Charles O'Malley, Sandra Cadwalader, Sam Gejdenson, John Holder, Alvin Josephy, Charles Klewin, Shepard Kreech, Kevin McBride, and Shirley Patrick. Additionally, the plaintiffs modified their claims against defendants Bell and Campisi to reflect their being sued "individually and as an authorized agent of the Tribe," as well as in their capacities as officers, representatives, and/or agents of "the Corporation and/or the Association." The Second Amended Complaint also eliminated the Tribe as a defendant, consistent with the Second Circuit's holding as to the Tribe's immunity.

In the Second Amended Complaint — which is now the operative complaint — the plaintiffs continue to assert copyright infringement, tortious interference with contract, and Connecticut Unfair Trade Practices Act ("CUTPA") claims against Bell and Campisi and assert copyright infringement and CUTPA claims against the Corporation, Association, and Directors. Damages are claimed against all defendants as to all claims and preliminary and permanent injunctive relief is claimed against all defendants as to the copyright claim.

Following the filing of the Second Amended Complaint, the defendants Bell and Campisi filed a motion to dismiss the plaintiffs' Second Amended Complaint [Doc. # 71]. After that, the defendants Corporation, Association, and Directors moved for summary judgment² [Doc. # 85]. Each motion is discussed below.

II. Motion for Summary Judgment

The defendants Corporation, Association, and Directors have moved for summary judgment on the basis that (1) the "Association" named by the plaintiffs does not exist, and (2) there exist no genuine issues of material fact that the Corporation, Association, and Directors were not parties to the events or transactions alleged in the Second Amended Complaint and that they are entitled to judgment as a matter of law.

Following this Court's hearing on the pending motions, discovery on the issues raised by the motion to dismiss and motion for summary judgment, and additional briefing, the plaintiffs conceded that summary judgment should enter as to the Corporation and Association, as well as Hayward, O'Malley, Cadwalader, Gejdenson, Holder, Josephy, Klwein, Kreech, and Patrick. Accordingly, summary judgment is GRANTED, ABSENT OBJECTION as to those defendants, and as to Counts Seven, Eight, Ten, and Eleven of the Second Amended Complaint.³

Though the plaintiffs do not concede that summary judgment should enter as to defendant McBride, because McBride had "direct dealings with the plaintiff," the Court notes that McBride has been sued only in his capacity as an "officer and/or director" of the Corporation and Association, and thus, summary judgment is GRANTED, without prejudice,⁴ as to the claims against McBride as well.

Thus, the only remaining defendants are Bell and Campisi (1) in their individual capacities, (2) in their official capacities as officers, representatives, and/or agents of the Corporation and Association, and (3) in their official capacities as officers, representatives, and/or agents of the Tribe. The causes of action as to these two defendants are copyright infringement, tortious interference with contract, and CUTPA violations, and are set forth in Counts One through Six and Nine of the Second Amended Complaint.

The Court will now address Bell and Campisi's motion to dismiss.

III. Motion to Dismiss

A. Facts⁵

In October 1994, Debra Bassett ("Bassett"), doing business as Bassett Productions, and on behalf of Bassett Entertainment Corporation,⁶ met with representatives of the Mashantucket Pequot Tribe (the "Tribe"), a federally recognized Indian tribe with a reservation in the State of Connecticut, to discuss producing a film for the new Mashantucket Pequot Museum & Research Center (the "Museum") about the 1636-38 Pequot War. In November of that year, defendant Theresa Bell, a member of the Tribe and Executive Director of the Museum, signed a "confidential disclosure agreement" in which she agreed that all information received from Bassett Productions was confidential and proprietary, and was to be returned to Bassett Productions at its request. In February 1995, defendant Jack Campisi, a projects director for the Museum, advised Bassett that the Tribe intended to hire her to produce the film, contingent on the negotiation of a satisfactory contract and the Tribe's acceptance of a script for the film.

In August 1995, Bassett Productions entered into a written contract with the Tribe for the development and production of the film. The contract identified Bassett Productions as the "Producer" and the Tribe as the "Owner," but did not define these terms. It provided that Bassett Productions would hire and supervise the writing of a screenplay by Keith Merrill and George Burdeau and that the Tribe would compensate Bassett Productions for development costs according to an agreed schedule. It also agreed that when the Tribe approved the final draft of the screenplay, Bassett Productions would have exclusive rights to produce the film for exhibition at the Museum.

Some time before October 20, 1995, Bassett delivered the Tribe a script that she had written, based on a "script scenario" she had developed with assistance from her associate Allan Eckert.⁷ The script was prominently marked on its first page, "© 1995 Bassett Entertainment Corporation."⁸

On October 20, 1995, Bassett received a notice from the Tribe terminating the contract. The notice asserted that Bassett had not "perform[ed] the contract as the parties anticipated."

Following the termination of the contract, the Tribe continued to pursue the development and production of a film on the Pequot War for exhibition at the Museum, with Burdeau and Merrill as producers and directors. In October 1996, filming was completed on a motion picture entitled, "The Witness." The Tribe currently shows the film at the Museum.

In September 1996, Bassett commenced this...