Bowens v. Aftermath Entertainment, CIV. 02-40170.

• Decision Date: 28 March 2003
• Docket Number: No. CIV. 02-40170.,CIV. 02-40170.
• Citation: 254 F.Supp.2d 629
• Parties: Gregory J. BOWENS, a Michigan resident, Paula M. Bridges, an Illinois resident, Gary A. Brown, a Michigan resident, Robert B. Dunlap, a Michigan resident, Phillip A. Talbert, a Michigan resident, Plaintiffs, v. AFTERMATH ENTERTAINMENT, a California corporation, Amazon.com, Inc., a Delaware corporation, AOL Time Warner, Inc., a Delaware corporation, Philip J. Atwell, a California resident, Barnes & Noble, Inc., a Delaware corporation, Barnes & Noble. com, Inc., a Delaware corporation, Best Buy Co., a Minnesota corporation, Blockbuster, Inc., a Delaware corporation, Borders Group, Inc., a Michigan corporation, CDnow, Inc., a Pennsylvania corporation, Chronic 2001 Touring, Inc., a California corporation, Circuit City Stores, Inc., a Virginia corporation, John Doe Number One, John Doe Number Two, Eagle Rock Entertainment, PLC, a British corporation, Eagle Vision, Inc., a Delaware corporation, Germonimo Film Productions, Inc., a California corporation, Harmony House Records & Tapes, Inc., a Michigan corporation, Hastings Entertainment, Inc., a Texas corporation, HMV Media Group PLC, a British corporation, Honigman Miller Schwartz and Cohn, LLP, a Michigan limited liability partnership, House of Blues Concerts/Hewitt/ Silva, LLC, a California limited liability company, Ingram Entertainment Holdings, Inc., a Tennessee corporation, Interscope Records, Inc., a Delaware corporation, Ervin Johnson, a California resident, Magic Johnson Productions, LLC, a Delaware limited liability company, Metropolitan Entertainment Group, Inc., a New Jersey Corporation, Movie Gallery, Inc., a Delaware corporation, MTS, Inc.,/Tower Records, a California corporation, the Musicland Group, Inc., a Delaware corporation, Panavision, Inc., a Delaware corporation, Radio Events Group, Inc., an Arizona corporation, RED Distribution, Inc., a Delaware corporation, Phil Robinson, a California resident, William Silva, a California resident, Trans World Entertainment Corporation, a New York corporation, Kirdis Tucker, a California resident, Wherehouse Entertainment, Inc., a Delaware corporation, WH Smith PLC, a British corporation, and Andre Young, a California resident, jointly and severally, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

254 F.Supp.2d 629

Gregory J. BOWENS, a Michigan resident, Paula M. Bridges, an Illinois resident, Gary A. Brown, a Michigan resident, Robert B. Dunlap, a Michigan resident, Phillip A. Talbert, a Michigan resident, Plaintiffs, v. AFTERMATH ENTERTAINMENT, a California corporation, Amazon.com, Inc., a Delaware corporation, AOL Time Warner, Inc., a Delaware corporation, Philip J. Atwell, a California resident, Barnes & Noble, Inc., a Delaware corporation, Barnes & Noble. com, Inc., a Delaware corporation, Best Buy Co., a Minnesota corporation, Blockbuster, Inc., a Delaware corporation, Borders Group, Inc., a Michigan corporation, CDnow, Inc., a Pennsylvania corporation, Chronic 2001 Touring, Inc., a California corporation, Circuit City Stores, Inc., a Virginia corporation, John Doe Number One, John Doe Number Two, Eagle Rock Entertainment, PLC, a British corporation, Eagle Vision, Inc., a Delaware corporation, Germonimo Film Productions, Inc., a California corporation, Harmony House Records & Tapes, Inc., a Michigan corporation, Hastings Entertainment, Inc., a Texas corporation, HMV Media Group PLC, a British corporation, Honigman Miller Schwartz and Cohn, LLP, a Michigan limited liability partnership, House of Blues Concerts/Hewitt/ Silva, LLC, a California limited liability company, Ingram Entertainment Holdings, Inc., a Tennessee corporation, Interscope Records, Inc., a Delaware corporation, Ervin Johnson, a California resident, Magic Johnson Productions, LLC, a Delaware limited liability company, Metropolitan Entertainment Group, Inc., a New Jersey Corporation, Movie Gallery, Inc., a Delaware corporation, MTS, Inc.,/Tower Records, a California corporation, the Musicland Group, Inc., a Delaware corporation, Panavision, Inc., a Delaware corporation, Radio Events Group, Inc., an Arizona corporation, RED Distribution, Inc., a Delaware corporation, Phil Robinson, a California resident, William Silva, a California resident, Trans World Entertainment Corporation, a New York corporation, Kirdis Tucker, a California resident, Wherehouse Entertainment, Inc., a Delaware corporation, WH Smith PLC, a British corporation, and Andre Young, a California resident, jointly and severally, Defendants.

No. CIV. 02-40170.

United States District Court, E.D. Michigan, Southern Division.

March 28, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David K. Tillman, Tillman & Tillman, Detroit, MI, Glenn D. Oliver, Detroit, MI, for Gregory J. Bowens, Paula M. Bridges, Gary A. Brown, Robert B. Dunlap, Phillip A. Talbert, plaintiffs.

Herschel P. Fink, Cynthia G. Thomas, Honigman, Miller, Detroit, MI, for After-Math Entertainment, AOL Time Warner, Inc., Philip J. Atwell, Barnes and Noble, Inc., Barnes and Noble.com, Inc., Best Buy Co., Blockbuster, Inc., Chronic 2001 Touring, Inc., Eagle Rock Entertainment, PLC, Eagle Vision, Inc., Geronimo Film Productions, Inc., HMV Media Group PLC, Honigman Miller Schwartz and Cohn, L.L.P., House of Blues Concerts/Hewitt/Silva, L.L. C, Ingram Entertainment Holdings, Incorporated, Interscope Records, Incorporated, Ervin Johnson, Magic Johnson Productions, L.L.C., Metropolitan Entertainment Group, Incorporated, MTS, Incorporated/Tower Records, Musicland Group, Incorporated, RED Distribution, Incorporated, Phil Robinson, William Silva, Trans World Entertainment Corporation, Kirdis Tucker, WH Smith PLC, Andre Young, defendants.

Thomas G. McNeill, Dickinson Wright, Detroit, MI, for Amazon.com, Inc., Borders Group, Inc., defendants.

Eric A. Michaels, Hertz, Schram, Bloomfield Hills, MI, for CDNow, Inc., defendant.

Howard Hertz, Eric A. Michaels, Hertz, Schram, Bloomfield Hills, MI, Steven M. Hayes, Parcher & Hayes, New York, NY, for Bertelsmann AG, defendant.

Stephen M. Kelley, Kelley, Casey, St. Clair Shores, MI, Douglas G. McCray, G.W. Caravas Assoc., Clinton Township, MI, Jayne L. Jakubaitis, Bricker & Eckler, Cleveland, OH, for Circuit City Stores, Inc., defendant.

Raymond L. Morrow, Kemp, Klein, Troy, MI, for Harmony House Records and Tapes, Inc., defendant.

John J. Lynch, III, C. Edward Hildebrandt, Vandeveer Garzia, Troy, MI, for Hastings Entertainment, Inc., defendant.

Laurie J. Michelson, Butzel Long, Detroit, MI, for Movie Gallery, Inc., defendant.

M.J. Stephen Fox, Fox Assoc., Grand Rapids, MI, for Panavision, Inc., defendant.

John E. McSorley, Garan Lucow, Detroit, MI, for Wherehouse Entertainment, Incorporated, defendant.

MEMORANDUM OPINION AND ORDER

GADOLA, District Judge.

Before the Court are the following motions: (1) Defendants' Motions to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [docket entries 34, 38, 44, 65, 68, 73, 84, and 98]¹ (2) Plaintiffs' Second Motion for Leave to Amend the First Amended Complaint [docket entry 103]; (3) Defendant Musicland Group, Inc.'s Motion to Set Aside Clerk's Entry of Default [docket entry 107]; and (4) Defendants' Motion for Sanctions [docket entry 36].² The Court held a hearing in this matter on November 13, 2002. For the reasons set forth below, the Court shall deny Defendants' Motions to Dismiss, grant Plaintiffs' Second Motion for Leave to Amend the First Amended Complaint, grant Defendant Musicland Group, Inc.'s Motion to Set Aside Clerk's Entry of Default, and deny Defendants' Motion for Sanctions.

1. BACKGROUND

On July 6, 2000, rap music artists Andre Young, Snoop Dogg, Ice Cube, and Eminem were scheduled to perform as part of the "Up in Smoke Tour" (the "Tour") at Joe Louis Arena in Detroit. (See Def. June 18, 2002 Br. at 2.)³ Prior to arriving in Detroit, the Tour had performed in ten cities in the United States and Canada. (See id.) At each performance, the Tour played a short video (the "Video") to introduce the headline performers, Andre Young and Snoop Dogg. (See id.) At approximately 5:00 p.m. on July 6, 2000, and only hours before the concert was to begin officials from the City of Detroit including members of the Detroit Police Department ("City Officials") arrived at Joe Louis Arena and met with individuals associated with the Tour ("Tour Representatives"). (See id.) Citing various obscenity statutes, the City Officials demanded that the Video not be played during the performance. (See id. at 2-3.)

Plaintiffs allege that the meeting consisted of a private discourse (the "first discourse") between Plaintiffs Greg Bowens, press secretary to Detroit Mayor Dennis Archer, Gary Brown, a Commander in the Detroit Police Department, Paula Bridges, a Second Deputy Chief in the Detroit Police Department, and Defendants Phil Robinson, the on-site promoter representing Ervin Johnson and Magic Johnson Productions, Kirdis Tucker, the General Manager of Aftermath Entertainment, and Bill Silva, the President of House of Blues Concerts. (First Amended Complaint ("F.A.C.") ¶ 50.) Moreover, "[o]nly certain concert staff and City of Detroit officials were allowed in the meeting room." (F.A.C.1150.) Despite Bowens' explicit request for a private meeting, however, Tour Representatives, using hidden cameras and microphones, recorded the first discourse. (F.A.C.t 52.) In addition, Tour Representatives used a secret camera and microphone to record a private discourse between Plaintiff Robert Dunlap, an officer in the Detroit Police Department, and Bob Fontenot, the tour's head of security (the "second discourse"). (F.A.C. ¶ 57.)

The audio and video recordings of the July 6, 2000, conversations between Plaintiffs and Tour Representatives were incorporated into a "Gangster Rap Concert DVD" (the "Concert DVD"), and advertised as "exclusive backstage footage." (F.A.C. ¶¶ 58, 62.) The backstage footage involving Plaintiffs was included in two "bonus" tracks on the Concert DVD entitled "The Detroit Controversy" and "Crew." (F.A.C.¶ 67.) The Concert DVD is marketed, advertised, promoted, distributed, rented, and sold throughout the world. (F.A.C.1165.) Further, the Concert DVD "has become one of the hottestselling music videos, achieving worldwide multi-platinum status." (F.A.C.H 69.)

Plaintiffs filed the First Amended Complaint in this Court on April 24, 2002, naming, in addition to Tour Representatives Robinson, Tucker, and Silva, an array of media and entertainment companies, retailers, a Detroit law firm, and various other individuals as Defendants. The case was originally assigned to United States District Judge Avern Cohn but was transferred to the undersigned on June 20, 2002, pursuant to Local Rule 83.11(d).

In the First Amended Complaint, Plaintiffs alleged nineteen causes of action, only three of which remain before the Court at this time. In counts one, two, three, and four, Plaintiffs alleged violations of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510, et seq. (the "Federal Wiretap Act" or "Act"). In counts five, six, seven, eight and nine, Plaintiffs alleged violations of the Michigan Eavesdropping Statutes, Michigan Compiled Laws § 750.539a et seq. In counts ten, eleven, twelve, thirteen, and fourteen, Plaintiffs alleged false light-invasion of privacy, misappropriation of Plaintiffs' likenesses, violation of the right of publicity, unjust enrichment, and restitution. In count fifteen, Plaintiffs alleged a violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Finally, in counts sixteen, seventeen, eighteen, and nineteen Plaintiffs alleged fraud based on false representation, fraud based on failure to disclose facts, civil conspiracy, and aiding and abetting.

On July 15, 2002, this Court dismissed without prejudice Plaintiffs' state law claims, declining to exercise supplemental jurisdiction over those claims. On August 23, 2002, United States Magistrate Judge Wallace Capel, Jr. granted in part Plaintiffs' Motion for Leave to Amend the First Amended Complaint, allowing Plaintiffs to withdraw their Federal Wiretap Act claim in count four and their Lanham Act claim in count fifteen. Therefore, only counts one, two, and three,...