Dielsi v. Falk
| Decision Date | 23 January 1996 |
| Docket Number | No. CV95-8079 ABC (BQRx).,CV95-8079 ABC (BQRx). |
| Citation | 916 F. Supp. 985 |
| Court | U.S. District Court — Central District of California |
| Parties | Frank DIELSI, Plaintiff, v. Peter FALK, Chris Seiter, Vince McEveety, MCA Universal City Studios, ABC Television (KABC), and Does 1 through 100, inclusive, Defendants. |
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Salomone & Rapp, Richard T. Ferko, Woodland Hills, CA, for plaintiff.
Leopold, Petrich & Smith, Louis P. Petrich, Los Angeles, CA, for defendants.
1.) PLAINTIFF'S MOTION TO REMAND;
2.) DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S THIRD, FOURTH, FIFTH, AND SIXTH CAUSES OF ACTION
Plaintiff's motion to remand for lack of subject matter jurisdiction and Defendants' motion to dismiss Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action came on regularly for hearing before this Court on January 22, 1996. After reviewing the materials submitted by the parties, argument of counsel, and the case file, it is hereby ORDERED that Plaintiff's motion is GRANTED in part. Plaintiff's First, Second, Third, and Fourth Causes of Action are hereby REMANDED to state court. Defendants' motion to dismiss is also GRANTED in part. Plaintiff's Fifth and Sixth Causes of Action are hereby DISMISSED without prejudice.
The Plaintiff in this case, FRANK DIELSI, was a speech coach for Defendant PETER FALK on the television series "Columbo." As more fully described below, Plaintiff asserts that he wrote a potential script for "Columbo," entitled "Never Trust a Gambler." Plaintiff then submitted the script to Defendant CHRIS SEITER, then the show's producer. The script was never specifically accepted or rejected. However, as further discussed below, Plaintiff alleges that Defendants later used his script as the basis for an episode of "Columbo" entitled "Strange Bedfellows." On October 20, 1995, Plaintiff filed a Complaint against Defendants Falk, Seiter, VINCE McEVEETY, MCA UNIVERSAL CITY STUDIOS ("Universal"), ABC TELEVISION (KABC) ("ABC"), and DOES 1 through 100, inclusive, for breach of contract, breach of confidence, fraud, negligent misrepresentation, conversion, and negligence. Plaintiff prays for compensatory damages in the amount of $1.25 million, exemplary damages, costs, and attorneys' fees.
Defendant Universal received a copy of Plaintiff's Complaint on October 24, 1995. Defendant Chris Seiter was served with a copy of the Complaint on November 19, 1995. On November 24, 1995, Defendants Universal and Seiter attempted to file a Notice of Removal. The clerk initially accepted Universal's removal notice, assigning the case the file number 95-8051. However, upon further review, the clerk ultimately rejected Universal's filing, because the face of the removal notice differed from the face of Plaintiff's Complaint. In drafting its Notice of Removal, Defendants failed to list "MCA Universal City Studios" as a Defendant in the action (even though Universal drafted the removal notice and was listed at the top of the document).
On November 27, 1995, Defendants Universal and Seiter filed an amended Notice of Removal, listing "MCA Universal City Studios" as a Defendant in the action. On November 28, 1995, Defendant ABC was first served with a copy of Plaintiffs Complaint. Apparently, Defendants Peter Falk and Vince McEveety have never been served with Plaintiff's Complaint. On December 20, 1995, Defendant ABC joined in Defendants Universal's and Seiter's Notice of Removal. On December 20, 1995, Defendants filed a motion to dismiss Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action. On January 8, 1996, Plaintiff filed an Opposition. On January 16, 1996, Defendants filed a Reply. In addition, on December 27, 1995, Plaintiff filed a motion to remand for lack of subject matter jurisdiction. On January 8, 1996, Defendants filed an Opposition. Plaintiff did not file a Reply.
In his Complaint, Plaintiff alleges as follows:
1.) Plaintiff was employed as a speech coach for Defendant Peter Falk on the television series "Columbo." (Compl. ¶ 1)
2.) Before April 1994, Plaintiff was told by Defendant Chris Seiter, the producer for "Columbo," that new scripts were needed for the show. (Compl. ¶ 10).
3.) In April 1994, Plaintiff completed a television script specifically for "Columbo," entitled "Never Trust A Gambler." Plaintiff submitted this script to Seiter. (Compl. ¶ 11).
4.) In May 1994, Seiter told Plaintiff that he wanted to speak with Plaintiff about his script. (Compl. ¶ 12).
5.) In June 1994, Seiter told Plaintiff that he "loved" the script, but that he wanted certain changes. (Compl. ¶ 14).
6.) Plaintiff heard nothing from Seiter until September 1994, when he was hired to work as Falk's speech coach for the "Columbo" episode called "Strange Bedfellows." (Compl. ¶ 15).
7.) After "Strange Bedfellows" was completed, Plaintiff realized that the episode was in fact based on Plaintiff's script "Never Trust A Gambler." (Compl. ¶ 16).
8.) "Strange Bedfellows" was copied from Plaintiff's script. Defendants did not have their idea for "Strange Bedfellows" until Plaintiff had submitted his script to Seiter. (Compl. ¶ 17).
9.) After the release of "Strange Bedfellows," Plaintiff demanded that Defendants compensate him for his work and give him proper credit. (Compl. ¶ 18).
10.) Defendants refused to compensate Plaintiff or give him any credit for his work. (Compl. ¶ 19).
11.) Plaintiff, at the request of Seiter, submitted his script to Defendants with the full expectation that he would be compensated for its use if Defendants decided to use it. Also, Defendants clearly understood that Plaintiff would be given credit for his work if they used his script. Accordingly, an implied contract existed between Plaintiff and Defendants, which Defendants breached. (Compl. ¶ 22).
12.) Defendants accepted the submission of Plaintiff's script in complete confidence, and on the understanding that the idea would not be used without Plaintiff's consent. Defendants breached that confidence. (Compl. ¶ 25).
13.) Defendants made many misrepresentations of fact to Plaintiff. Defendants represented to Plaintiff that they would compensate him for his work, when, in fact, they had no intention of compensating Plaintiff for his script. Defendants represented to Plaintiff that they would not use his script, when, in fact, they did use his script for "Strange Bedfellows." Defendants wilfully concealed from Plaintiff that they were developing and producing a "Columbo" episode based on "Never Trust A Gambler." (Compl. ¶ 29).
14.) At the time the misrepresentations were made, Plaintiff was ignorant of the falsity of the representations, believed they were true, and acted in reasonable reliance on them. (Compl. ¶ 30).
15.) Defendants have been guilty of oppression, fraud and malice, and have acted in conscious disregard for Plaintiff's rights. (Compl. ¶ 32).
16.) Defendants have unlawfully and wrongfully converted for their own use the "Never Trust A Gambler" script in producing and distributing the "Columbo" episode "Strange Bedfellows." (Compl. ¶ 37).
17.) The appropriation was without Plaintiff's consent and for Defendant's pecuniary gain and profit. (Compl. ¶¶ 38-39).
18.) Defendants breached their duty of care to Plaintiff by failing to acknowledge that "Strange Bedfellows" is based upon "Never Trust A Gambler," and by failing to account for the monies due to Plaintiff from "Strange Bedfellows." This breach has damaged Plaintiff's reputation and hurt his ability to continue developing his career in the entertainment industry. (Compl. ¶ 43).
19.) Plaintiff seeks compensatory damages from all Defendants. In addition, Plaintiff seeks exemplary damages, costs, and attorneys' fees from Defendant Chris Seiter. (Prayer for Relief).
As stated above, Plaintiff has filed a motion to remand for lack of subject matter jurisdiction, and Defendants have filed a motion to dismiss Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action. Both motions address the issue of whether Plaintiff's state law claims are preempted by federal copyright law. Because both motions involve interlinking issues of federal jurisdiction, the Court will address both motions together.
Because Defendants did not successfully file their Notice of Removal until November 27, 1995 (more than 30 days after Defendant Universal received a copy of the Complaint), Plaintiff first asserts that removal was not timely.1
Under 28 U.S.C. § 1446(b), a notice of removal must be filed "within 30 days after receipt by defendant, through service or otherwise, of a copy of the initial pleading ..." Defendants argue that the 30 day period begins when a Defendant is properly served with a copy of the Complaint. However, a majority of courts hold that the 30 day period begins when a Defendant receives a copy of the Complaint. See, e.g., Tech-Hills Assoc. v. Phoenix Home Life Mut. Ins. Co., 5 F.3d 963, 968 (6th Cir.1993) (); Lofstrom v. Dennis, 829 F.Supp. 1194, 1196 (N.D.Cal.1993) (); Uhles v. F.W. Woolworth Co., 715 F.Supp. 297, 298 (C.D.Cal.1989) (). The Court concludes that the "receipt rule" is the better reasoned position, for it more closely follows the wording of the statute. Section 1446(b) states that removal must be performed "within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading." (emphasis added). Thus, under § 1446(b), the "receipt" need not be by official "service."
Thus, because Universal received a copy of Plaintiff's Complaint on October 24, 1995, its Notice of Removal was due on November 24, 1995. On November 24, 1995, Defendant...
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