Gardner v. Clark

• Decision Date: 30 May 2000
• Docket Number: Civil Action No. 2:99cv84-D-B
• Citation: 101 F.Supp.2d 468
• Parties: Carl GARDNER, Plaintiff, v. Dick CLARK d/b/a Dick Clark Productions, Olive Enterprises, Inc., and The Robinson Property Group, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

101 F.Supp.2d 468

Carl GARDNER, Plaintiff, v. Dick CLARK d/b/a Dick Clark Productions, Olive Enterprises, Inc., and The Robinson Property Group, Defendants.

Civil Action No. 2:99cv84-D-B

United States District Court, N.D. Mississippi, Delta Division.

May 30, 2000.

Gerard F. Dunne, New York City, for plaintiff.

John H. Cocke, Merkel & Cocke, Clarksdale, MS, Lowell Davis, Carle Place, NY, for Dick Clark, Olive Enterprises, Inc., defendants.

David A. Burns, Michael K. Graves, Holcomb Dunbar, Clarksdale, MS, for Horseshoe Casino, defendant.

Michael K. Graves, Edward Peacock Connell, Jr., Holcomb Dunbar, Clarksdale, MS, David A. Burns, Water Valley, MS, Lowell Davis, Carle Place, NY, for Robinson Property Group Ltd. Partnership, defendant.

OPINION

DAVIDSON, District Judge.

The following matters are before the court: 1) Plaintiff's Motion to Dismiss the Counter-claim of Robinson Property Group; 2) Plaintiff's Renewed Motion to Dismiss the Second Counter-claim of Dick Clark d/b/a Dick Clark Productions and Olive Enterprises, Inc.; and 3) Defendant Dick Clark d/b/a Dick Clark Production's Motion to Dismiss. Upon due consideration, the court finds that the Plaintiff's motions shall be granted and the Defendant's motion shall be denied.

Factual and Procedural History

Plaintiff, Carl Gardner, filed the underlying Complaint against Defendants, Dick Clark d/b/a Dick Clark Productions, Olive Enterprises, Inc., and The Robinson Property Group alleging trademark infringement and false advertising for the Defendants' unauthorized use of Gardner's registered trademark for the musical group "The Coasters."

During the 1950s and 1960s, The Coasters recorded several highly acclaimed songs establishing the group as a rock and roll icon and providing numerous well-known standards of rock and roll music. Some of the group's hits include Poison Ivy, Charlie Brown, Yakety Yak, and Love Potion No. 9. Gardner, an original member of the musical group, obtained a trademark registration for the name "The Coasters" on March 31, 1998 (Reg. No. 2,146,911).

On May 21, 22, and 23, 1998, Defendants Dick Clark d/b/a Dick Clark Productions (hereinafter Clark) and Olive Enterprises, Inc., produced a concert at the Bluesville Showcase Nightclub in the Horseshoe Casino, owned by Defendant Robinson Property Group, which included The Coasters. The promotional materials used by the Defendants represented that Billy Guy, another original member of the group, would appear with The Coasters and perform at the nightclub. The materials also noted that The Coasters were the first group inducted into the Rock & Roll Hall of Fame and cited some of their greatest hits. Neither Billy Guy nor any other member of The Coasters that had been inducted into the Rock & Roll Hall of Fame performed at the concert.

Gardner filed the instant cause of action alleging infringement of his rights in The Coasters trademark and for false advertising regarding the promotional materials which asserted that The Coasters who were to appear at the Bluesville concert were the same group that had performed under that name in the 1950s and 1960s and that had been inducted into the Rock & Roll Hall of Fame. Both Robinson Property Group and Dick Clark filed Answers which included counter-claims against the Plaintiff for, inter alia, unlawful restraint of trade. Plaintiff's instant motions seek to dismiss the counter-claims for unlawful restraint of trade, and Defendant Clark's motion seeks dismissal of the claims against Dick Clark d/b/a Dick Clark Productions.

Discussion

A. Motion to Dismiss Counter-claims of Robinson Property Group and Dick Clark

In their respective Answers, Defendants Robinson and Clark allege identical "restraint of trade" counter-claims against Gardner.¹ Specifically, Defendants allege that Plaintiff's persistent litigation amounts to an unlawful restraint of their commercial activities. Because the Plaintiff's motions to dismiss these counter-claims are grounded on the same legal theories, the court will consider them simultaneously. Although Defendant Clark has failed to respond to the Plaintiff's motion to dismiss, in the interest of judicial economy, the court will address the merits of both of Plaintiff's motions.

Plaintiff submits two principal bases for dismissal of the counter-claims, namely: 1) that the Defendants failed to plead any basis for jurisdiction of the court as required by Rule 8(a) of the Federal Rules of Civil Procedure; and 2) that the counter-claims fail to state a claim upon which relief can be granted.² The court will address these issues in turn.

1. Federal Rule of Civil Procedure 8(a)

Rule 8(a) requires that

[a] pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it....

Fed.R.Civ.P. 8(a). Gardner contends that the Defendants' counter-claims are fatally flawed by not including a statement of the grounds upon which jurisdiction is based.³

In a cause of action, the complaint is designed to be the "ignition point" for discovery, where the issues are to be defined. Murray v. Restor Tel. Products/World Access, Inc., No. Civ. 399CV0819H, 2000 WL 45876, at *2 (N.D.Tex. Jan.19, 2000). Thus, the pleading requirement established by Rule 8(a) is a considerably low hurdle. A complaint or counter-complaint will only be deemed inadequate under Rule 8 if it fails to "1) provide notice of the circumstances which give rise to the claim, or 2) set forth sufficient information to outline the elements of the claim or permit inferences to be drawn that these elements exist." Id. (citing General Star Indem. Co. v. Vesta Fire Ins. Corp., 173 F.3d 946, 950 (5th Cir.1999). Moreover, failure to comply with Rule 8 does not mandate dismissal for lack of jurisdiction so long as the facts appropriate for invocation of federal jurisdiction are alleged in the complaint. See Continental Cas. Co. v. Canadian Universal Ins. Co., 605 F.2d 1340, 1343 (5th Cir. 1979).

Although the Defendants' counter-claims are not overly artful, the allegations in the counter-complaints provide far more than a "bare bones allegation that a wrong occurred." See Walker v. South Central Bell Tel. Co., 904 F.2d 275, 277 (5th Cir.1990). Additionally, because the Plaintiff's Complaint originated under 15 U.S.C. § 1114 for infringement of a registered trademark, and because the Defendants' counter-claims are recognized defenses under 15 U.S.C. § 1115(b)(7), there was no need for pleading the basis for this court's jurisdiction. Thus, Defendants' counter-claims, while perhaps deficient for their failure to specify the basis for jurisdiction, are not fatally so. See Hildebrand v. Honeywell, 622 F.2d 179, 181 (5th Cir.1980)(It is well-settled that where a complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged satisfy the jurisdictional requirements of the statute.).

2. Federal Rule of Civil Procedure 12(b)(6)

In ruling on a motion to dismiss under Rule 12(b)(6), the court must take as true the well-pleaded allegations in the complaint and construe them in the light most favorable to the plaintiff. C.C. Port, Ltd. v. Davis-Penn Mtg. Co., 61 F.3d 288, 289 (5th Cir.1995). "Taking the facts alleged in the complaint as true, if it appears certain that the plaintiff cannot prove any set of facts that would entitle it to the relief it seeks," dismissal is proper. Id. It must appear beyond doubt that the plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir.1995).

Conversely, dismissal is never warranted because the court believes the plaintiff is unlikely to prevail on the merits. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Even if it appears an almost certainty that the facts alleged cannot be proved to support the claim, the complaint cannot be dismissed so long as the complaint states a claim. Clark v. Amoco Production Co., 794 F.2d 967, 970 (5th Cir.1986). If, however, a required element, a prerequisite to obtaining the requested relief, is lacking in the complaint, dismissal is proper. Id.

As their second counter-claim, Robinson and Clark allege that Gardner has committed unlawful restraint of trade by 1) threatening to take legal action against booking agents engaged in the business of selling the entertainment services of popular 1950s performing groups, unless they purchase these services from Gardner; 2) initiating litigation against individuals who offered the entertainment services of The Coasters; and 3) falsely claiming exclusive ownership of the trademark registration of The Coasters. See Answer of Robinson Property Group, Second Counter-claim and Answer of Dick Clark, Second Counter-claim.

Gardner has predicated his motion to dismiss on the grounds that neither the instant litigation nor his efforts to enforce his trademark rights violate antitrust laws and that the Defendants have failed to allege facts sufficient to support any claim for relief under the Sherman Act.

Current doctrines firmly recognize jurisprudential immunity from antitrust liability for a party's efforts to petition the government for redress. This immunity, known as the Noerr-Pennington Doctrine, was established by two Supreme Court cases, i.e. Eastern R.R. Presidents Conference v. Noerr Motor Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). Although originally applicable only to legislative and administrative efforts, the Noerr-Pennington Doctrine was extended to include attempts to persuade adjudicative bodies as...