Fahey v. Breakthrough Films & Television Inc.

• Decision Date: 07 July 2022
• Docket Number: Civil Action 21 Civ. 3208 (PAE) (SLC)
• Parties: SEAN P. FAHEY and DIETERICH GRAY, Plaintiffs, v. BREAKTHROUGH FILMS & TELEVISION INC., BREAKTHROUGH ENTERTAINMENT, IRA LEVY, and LAUREN LEINBURD, Defendants.
• Court: U.S. District Court — Southern District of New York

SEAN P. FAHEY and DIETERICH GRAY, Plaintiffs, v. BREAKTHROUGH FILMS & TELEVISION INC., BREAKTHROUGH ENTERTAINMENT, IRA LEVY, and LAUREN LEINBURD, Defendants.

Civil Action No. 21 Civ. 3208 (PAE) (SLC)

United States District Court, S.D. New York

July 7, 2022

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

HONORABLE PAUL A. ENGELMAYER, United States District Judge:

I. INTRODUCTION

Sean Fahey (“Fahey”) and Dieterich Gray (“Gray”) (together, “Plaintiffs”) proceeding pro se, bring this copyright and defamation action against Breakthrough Films & Television Inc. (“BFTV”), Breakthrough Entertainment (“BE,” together with BFTV “Breakthrough”), Ira Levy (“Levy”) and Lauren Leinburd (“Leinburd”) (Breakthrough Levy, and Leinburd, “Defendants”). (ECF No. 1). Defendants have moved to dismiss Plaintiffs' First Amended Complaint (ECF No. 28 (the “FAC”)) under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction or, in the alternative, under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (ECF No. 31 (the “Motion”)).

In opposing the Motion, Plaintiffs have requested that, if personal jurisdiction is lacking, the Court (i) permit jurisdictional discovery (the “Jurisdictional Discovery Request”) or, in the alternative, (ii) transfer this case to the United State District Court for the Southern District of California (the “Transfer Request”). (ECF No. 43 at 9-11; see ECF No. 36 at 6 ¶ 5, 10 ¶ 25).

For the reasons set forth below, I respectfully recommend that the Motion be GRANTED, that Plaintiffs' Jurisdictional Discovery and Transfer Requests be DENIED, and that the action be DISMISSED.

II. BACKGROUND

A. Factual Background

The Court summarizes the factual allegations in the FAC (ECF No. 28), which the Court accepts as true for purposes of the Motion. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); Lee v. Karaoke City, No. 18 Civ. 3895 (PAE) (SDA), 2020 WL 5105176, at *3 (S.D.N.Y. Aug. 31, 2020).

1. The Parties

Plaintiffs are television writers and owners of the copyrights for “A Life Worth Living” and “Life is Worth Living,” which are “television script[s]/screenplays and [a] series pitch” for “a multiepisode historical dramatic TV series” (the “Series”) that “takes place in the 1950s” and centers on “the most popular man on television” at that time, Bishop Fulton J. Sheen (“Sheen”). (ECF No. 28 ¶¶ 7, 17).^[1] Fahey is a citizen of Minnesota. (ECF No. 1 ¶ 2). Gray is a citizen of California. (Id. at 10).

BE, which owns BFTV, “is a producer and distributor of feature films, television series, and digital content, as well as international co-productions and production services[.]” (ECF No. 28 ¶ 9). Both BE and BFTV are “incorporated under the laws of Canada and maintain[] [their] principal place of business at 35 Britain Street” in Toronto, Ontario, Canada. (Id. ¶¶ 8-9). Levy is a “Partner and Executive Producer” at BE. (Id. ¶ 10; see ECF No. 33 ¶ 1). Leinburd is the Vice President and General Counsel of BE. (ECF No. 28 ¶ 11; see id. at 58; ECF Nos. 33 ¶ 6). At all times relevant to this action, Levy and Leinburd resided in Canada and worked out of Breakthrough's headquarters in Toronto. (ECF Nos. 1 at 4; 33 ¶¶ 5-6).

2. The Series

“Over the last 10 years, [Plaintiffs] have studied Sheen's life [and] teachings, [] become experts in Catholic history in the 1950s, 60s, and 70s[,]” and developed the Series. (ECF No. 28 ¶ 19; see id. ¶ 7). “Long before [P]laintiffs began working in television, they were both altar boys in rural Illinois, where both of their dads were ordained as Deacons in the Catholic Church, and their grandparents, mothers, aunts and uncles were and are prominent figures in the Peoria Diocese.” (Id. ¶ 20). “Before he began working in television, Sheen too was an altar boy from the Peoria Diocese whose family was a prominent fixture in the Church.” (Id.) Plaintiffs “have close relationships with Sheen's living relative, his 90 year old niece, Joan Cunningham, who is featured in their [S]eries.” (Id.)

Plaintiffs summarize the plot of the Series as follows: “When the most popular man on television, Bishop Fulton Sheen, goes up against the most powerful man in New York, Cardinal Francis Spellman, their bitter feud reveals the greatest untold story of the 20^th century.” (ECF No. 28 ¶ 17). The Series is:

[s]et against the backdrop of the Cold War, the cultural revolution, and the war in Vietnam, at a moment in time when faith hung in the balance, where through the advent of television one man - Bishop Fulton J. Sheen - was able to elevate into the highest trappings of fame and inspire our nation. Meanwhile - Cardinal Francis Spellman - and his ambition as a titan of industry, sought to build a global Catholic empire. Their rivalry goes all the way to the Pope and we learn their influence and the influence of Catholic power changes our world as we know it [sic].

(Id. ¶ 18). The Series is “about faith and power in the mid century and how it impacted the world[[,]”and “the pitfalls of fame and vanity, of political influence and ambition, and what it means to adhere to a higher calling.” (Id.)

In June 2014, having developed a “pitch deck,” Plaintiffs began “to discuss potential producing partners” for the Series. (ECF No 28 ¶ 22). On July 6, 2014, Plaintiffs “finalized the first 22 pages of the first draft pilot episode” for the Series. (Id. ¶ 26). In August 2014, Plaintiffs “finished an updated version of the [Series] pilot.” (Id. ¶ 30).

In December 2014, “Fahey attended an event, seeking to pitch the [Series] to potential producing partners[,] . . . and exchanged contact information with potential producing partners,” one of which was Ramon Estevez (“Estevez”). (ECF No. 28 ¶ 31). On January 13, 2015, Fahey sent Estevez “an information package summarizing the two part mini-series” and “a solid first draft of episode 1[.]” (ECF 28 at 75). In this email, Fahey also described the “power dynamic between Sheen and Spellman” (id. ¶ 28), and his efforts to “mold Cardinal Spellman's story into Sheen's journey.” (Id. at 75). Fahey wrote:

[Spellman] was known as the Pope of the West, the Military Vicar, and was a force to recon [sic] with. I see Spellman and Sheen's conflict as one between the most powerful man in the Catholic Church and the most popular. There [sic] rift was inevitable and something that Sheen seldom discussed. There [sic] story parallels that of Beethoven and Salieri. Sheen being one of the greatest public speakers of our time and Spellman being the behind the scenes political force of the Catholic church. Spellman lacked the gravitas to move people the way Sheen did. Also I believe that Sheen was driven by his vocation and Spellman was driven by the need to grow the church - a highly politically motivated power player. While both there [sic] efforts did amazing things for the Catholic church, Sheen's passion came from within and Spellmans [sic] from without. Sheen was called and was plucked from above while Spellman aggressively pushed from below to get to his position of power.

(Id.)

On January 21, 2015, Fahey emailed Estevez “regarding a planned trip to Los Angeles and requested an in-person meeting.” (ECF No. 28 ¶ 33). On January 22, 2015, “Estevez emailed Fahey stating his interest in the project” and asked Fahey to contact him when in Los Angeles. (Id. ¶ 34; see id. at 439). On February 15, 2015, Fahey emailed Estevez regarding their “wonderful lunch meeting[,]” and attached “the latest versions of the information package” and the first episode for the Series. (Id. at 81; see id. ¶ 35). On November 13, 2015, Fahey sent Estevez, inter alia, “a full proposal” and a “full script for episode one[.]” (Id. at 86; see id. ¶ 37).

On February 12, 2016, Plaintiffs applied to the U.S. Copyright Office to register the copyright for “A Life Worth Living,” whose year of completion they listed as 2015. (ECF No. 28 at 44).

3. The Pitch Option Agreement

“Estevez introduced BFTV to the [Series], and in the spring of 2016, BFTV and [P]laintiffs through [Estevez], began negotiating the terms of a one-year pitch option agreement.” (ECF No. 28 ¶ 40). Plaintiffs retained New York attorney Joshua Sandler (“Sandler”) to represent them in the negotiations. (Id. ¶ 57; see id. at 454; ECF No. 43 at 14 ¶¶ 2, 5).

During the negotiations, BFTV introduced Plaintiffs to Angus Fraser (“Fraser”), a writer and producer whom Breakthrough commissioned to “rewrite” the pilot episode for the Series. (ECF No. 28 ¶¶ 41, 52; id. at 447). Between May and June 2016, Plaintiffs provided Fraser with information about Sheen and “many of the character building elements, specifically related to the relationship between Sheen and Spellman[.]” (Id. ¶ 47; see id. ¶¶ 42-51). “On June 6, 2016, Plaintiffs met with Fraser in Los Angeles to talk though the story and shape the direction for the rewrite of the pilot episode, where Plaintiffs provided as much historical knowledge, direction, and materials to Fraser as possible to get him started on the rewrite.” (Id. ¶ 52). On June 22, 2016, Fahey sent Fraser a “detailed story points, plot points, deep character descriptions and scene descriptions that Plaintiffs pulled from years of research and planning on their project[.]” (Id. ¶ 56). Among other ideas, Fahey shared the following “[interesting character points[:]”

Sheen is venerated because he proved himself worthy. Spellman is not for a reason. Both men are called to vocation but each has a different way of addressing their calling. We know Sheen is vain but we also know he's incredibly dedicated, pious, deeply, concerned with care of the soul, [and] plagued by a want to do more with his vocation. We know Spellman is cunning, powerful, greedy, [and]

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