Chalfant v. Tubb
| Decision Date | 28 August 2006 |
| Docket Number | No. 05-CV-0549-CVE-SAJ.,05-CV-0549-CVE-SAJ. |
| Citation | 453 F.Supp.2d 1308 |
| Parties | Patrick W. CHALFANT and R.J. Preston, individuals, Plaintiffs, v. Barry TUBB, an individual, and Madrugada Productions, Inc., a corporation, Defendants. |
| Court | U.S. District Court — Northern District of Oklahoma |
Richard Parker Hix, Robert Edward Spoo, Tom Quintin Ferguson, Doerner Saunders Daniel & Anderson, Tulsa, OK, for Plaintiffs.
James Edward Poe, Stephen Ray Clouser, Covington & Poe, Tulsa, OK, for Defendants.
Now before the Court is Defendants' Motion to Dismiss (Dkt.# 17) and Plaintiffs' Motion to Strike (Dkt.# 42). Defendants ask the Court to dismiss plaintiffs' complaint in its entirety, or in the alternative, defendants seek dismissal of specified claims. Plaintiffs request that the Court strike exhibit B attached to defendant's reply (Dkt.# 41), a letter from plaintiff Patrick Chalfant to defendant Barry Tubb, because it attempts to provide factual support for defendants' arguments beyond the allegations of the complaint.
Plaintiffs filed this action for copyright infringement alleging that defendants produced.and distributed a film based upon a screenplay written by plaintiffs. Plaintiffs Patrick W. Chalfant ("Chalfant") and R.J. Preston ("Preston") wrote a screenplay entitled "Blood Trail" and obtained a copyright from the United States Copyright Office in 1995 for it. The screenplay combines elements of Westerns and horror films, in addition to Native American cultural.themes, and is approximately 100 pages in length. The copyright for the screenplay, registration number PA 771-729, was issued on November 9, 1995 and is jointly held by plaintiffs.
In 1995, Barry Tubb, owner of Madrugada Productions, Inc. ("Madrugada"), requested a copy of the screenplay from Preston. After reading the screenplay, Tubb expressed' interest in producing a film based on the screenplay and Tubb, Chalfant, and Preston held a meeting in November 1995 at Preston's home in Fay, Oklahoma. Tubb mentioned the possibility that he would seek plaintiffs' permission to use the screenplay for his film, but stated that contractual details could be worked out after the film was produced. Tubb subsequently called Chalfant several times asking for permission to use the screenplay for a movie, but refused to discuss contractual terms until he could find a distributor for the film. Plaintiffs allege that they notified Tubb of their copyright as soon as it was registered.
Chalfant became concerned that Tubb would produce a film based on the screenplay without plaintiffs' permission and Chalfant's attorney sent Tubb a cease-and desist letter forbidding Tubb to use the screenplay. After receiving the letter, Tubb called Chalfant and left a threatening message on his answering machine. Chalfant returned Tubb's phone call, and informed Tubb that plaintiffs had agreed that Preston would have control over filming rights for the screenplay. Plaintiffs had decided that both of them would be given screenwriting credit if a film was ever produced. Chalfant also told Tubb that both plaintiffs would be entitled to compensation as part of any contract giving Tubb rights to produce a film based on the screenplay. Preston allowed Tubb to begin production of the proposed film without a written contract between Tubb and plaintiffs. Tubb orally agreed that he would execute a contract with plaintiffs once the film was produced and he had located a distributor. Tubb specifically agreed not to seek any distribution rights until plaintiffs approved the distributor and the parties signed a contract solidifying plaintiffs' rights as owners of the screenplay.
Preston attended two viewing of an early version of the film in Los Angeles, California and Snyder, Texas, and clarified that both plaintiffs would have to be credited as coauthors of the screenplay. Preston was more involved with the production of the film than Chalfant, participating as an actor in the film and assisting with production design.1 By 2002, Tubb informed Preston that he had still not found a distributor for the film. However, in August 2004, Tubb filed applications for copyrights for the derivative screenplay of Blood Trail and the film itself. Tubb listed Preston as a coauthor of the screenplay, but failed to mention Chalfant on the copyright application. The application did not note that the screenplay for Blood Trail was a derivative work and omitted any reference to the screenplay written by Preston and Chalfant in 1995. The applications were approved and Tubb received copyrights for the screenplay and film, numbers PAu2-887-903 and PAu2-860-135 respectively.
Tubb did not notify plaintiffs that he had received copyrights for the screenplay or film. Tubb hired Integration Entertainment, a California based company, to assist him in marketing and distributing Blood Trail.2 Tubb may have also provided Lions Gate Entertainment, Inc. ("Lions Gate") with copies of the film. Plaintiffs contend they did not authorize Tubb to market Blood Trail. Plaintiffs believe that Tubb allowed either Integration Entertainment or Lions Gate to market the film, and state that the DVD of Blood Trail is now commercially available for rental and purchase. Plaintiffs provide a list of stores where the DVD is sold or rented.3
Plaintiffs claim that the final version of Blood Trail distributed by defendants contains large segments of dialogue lifted directly from plaintiffs' original screenplay, as well as the same characters and events taken from the original work. Plaintiffs state that they have never received any compensation from defendants for use of their screenplay. The DVD packaging of Blood Trail states that the film is a Madrugada Ranch production and that the screenplay was coauthored by Tubb and Preston. Plaintiffs' complaint alleges five separate claims under the Copyright Act, violations of the Lanham Act, 15 U.S.C. 1125 et seq., as well as state law claims for fraud, constructive fraud, deceit, unfair trade practices, unfair competition, interference with prospective economic advantage, unjust enrichment, and breach of contract.
When reviewing a motion to dismiss under Rule 12(b)(6), the court must construe the allegations of the complaint as true and view the allegations in the light most favorable to the nonmoving party. Moffett v. Halliburton Energy Services, Inc., 291 F.3d 1227, 1231 (10th Cir.2002). A Rule 12(b)(6) motion "should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999).
Plaintiffs have filed a motion to strike (Dkt # 42) exhibit B attached to defendants' reply. Exhibit B is a letter from Chalfant to Tubb, dated April 8, 1996, which states:
This letter is to state that my only role in "Blood Trail" is of a writer, and that I, Patrick Chalfant, co-owner of the copyright for the screenplay, "Blood Trail" have made a contractual agreement with R.J. Preston, co-owner of the copyright for the screenplay "Blood Trail." This contract gives Mr. Preston the filming rights to "Blood Trail." This contract also states that I am not, nor ever have been associated in any form with Madrugada Ranch Productions or the filming or fundraising of "Blood Trail."
Dkt. # 41, Ex. B. Tenth Circuit precedent is clear that a district court has the discretion to consider evidentiary materials attached to a motion to dismiss, or it may decline to consider material outside of the complaint. Prager v. LaFaver, 180 F.3d 1185, 1189 (10th Cir.1999) () In Prager, the court found that the defendant's selected attachment of certain exhibits was over-inclusive and under-inclusive, and it was not an abuse of discretion for the district court to refuse to consider the attached documents. Id.
In this case, plaintiffs' complaint did not refer to any letter from Chalfant to Tubb, nor does this letter contain any information central to plaintiffs' allegations of copyright infringement. See United States Olympic Committee v. American Media, Inc., 156 F.Supp.2d 1200, 1204-05 (D.Colo.2001). Defendants' motion to dismiss did not refer to any evidence outside of the pleadings or request the Court to treat its motion as one for summary judgment. The Court has broad discretion to convert a motion to dismiss into a motion for summary judgment, but it will not do so in this case. See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997); McCormick v. City of Lawrence, 325 F.Supp.2d 1191, 1195 (D.Kan.2004). If defendants intended to attach exhibits to their motion to dismiss, they should not have waited until they filed their reply to do so. This essentially deprives plaintiffs of the opportunity to submit evidentiary exhibits or requires the Court to allow both parties additional time to submit additional evidence. Price v. Philpot, 420 F.3d 1158, 1167 (10th Cir. 2005).
Plaintiffs also argue that the letter submitted by defendants is likely to be taken out of context without additional evidence. Based on defendants' motion to dismiss, it is clear that defendant disputes the factual allegations in plaintiffs' complaint; however, a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is not the proper forum to raise these arguments. The Court declines the opportunity to consider evidence outside of the pleadings, and finds that plaintiffs' motion to strike (Dkt.# 42) should be granted.
Defendants have filed a motion to dismiss claiming that plaintiffs' complaint should be dismissed in its entirety or, in the alternative, that specific claims in the complaint...
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