Keane v. Fox Television Stations, Inc.

• Citation: 297 F.Supp.2d 921
• Decision Date: 08 January 2004
• Docket Number: No. CIV.A.H-03-1642.,CIV.A.H-03-1642.
• Parties: Harry T. KEANE, Jr., Plaintiff, v. FOX TELEVISION STATIONS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

297 F.Supp.2d 921

Harry T. KEANE, Jr., Plaintiff, v. FOX TELEVISION STATIONS, INC., et al., Defendants.

No. CIV.A.H-03-1642.

United States District Court, S.D. Texas, Houston Division.

January 8, 2004.

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Sean F Greenwood, Heard Robins et al, Ryan Bradley Bormaster, Miller & Asoc PLLC, Houston, TX, for Harry T Keane, Jr, plaintiff.

Marc A Sheiness, Sheiness Scott et al, Houston, TX, for Fox Television Stations Inc, Kriv Fox 26 (Houston TX), Simon Cowell, FremantleMedia of North America Inc, Fremantlemedia Ltd.

Robert Charles Shaddox, Winstead Sechrest et al, Houston, for 19TV Ltd.

MEMORANDUM AND ORDER

LAKE, District Judge.

Plaintiff, Harry T. Keane, Jr., brought this action against defendants, Fox Television Stations, Inc., Simon Fuller, FremantleMedia of North America, Inc., Simon Cowell, FremantleMedia, Ltd., 19 TV, Ltd., and Nigel Lythgoe, alleging federal trademark infringement and state common law claims for trademark infringement, unfair competition, breach of implied contract, misappropriation of idea/trade secrets and quantum meruit.¹ Pending before the court is the FMNA Defendants' Third Motion to Dismiss Pursuant to Federal Rule 12(b)(6) (Docket Entry No. 42) brought by defendants Fox Television Stations, Inc., FremantleMedia of North America, Inc., and Simon Cowell (collectively, "FMNA").² For the reasons set forth below, FMNA Defendants' Third Motion to Dismiss (Docket Entry No. 42) will be granted.

I. Standard of Review

Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Keane has failed to state a claim for which relief can be granted. A Rule 12(b)(6) motion to dismiss requires accepting as true the factual allegations contained in the complaint and construing the complaint in the light most favorable to the plaintiff. Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 387 (5th Cir. 2001). The motion should be denied if the plaintiff has alleged any set of facts to support a claim entitling the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Leffall v. Dallas Indep. School Dist., 28 F.3d 521, 524 (5th Cir.1994).

However, a party seeking to avoid dismissal "must plead specific facts, not mere conclusory allegations." Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir.1992). Furthermore, courts "are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003) (citations omitted). See also Nishimatsu Const. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1975) (concluding that when plaintiff attaches documents to a complaint that contradict statements in the complaint itself, the more specific document controls). Complaints "`must contain either direct allegations on every material point necessary to sustain a recovery ... or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.'" Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir.1995) (quoting 3 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1216 (2d ed.1990)). While dismissal of a claim under Rule 12(b)(6) is generally disfavored, the court should exercise its power to dismiss a complaint if it lacks an allegation regarding an element required to obtain relief. Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995) (citations omitted).

II. Factual and Procedural History

According to Keane's Second Amended Complaint, in 1997 he produced a stage musical called "Elvis, Then, Now & Forever."³ Keane alleges that his stage production "was an earlier iteration" of an idea he called "American Idol" that bears a strong resemblance to the Fox television show later produced with that name.⁴ Keane alleges that his Elvis musical "served as a springboard for his later refinements to American Idol," i.e., Keane contends that his Elvis musical stage show evolved into an entirely different idea: a concept for a television talent show, which he never produced but which he tried to sell and for which he tried to obtain backers.⁵

Keane claims that the concept underlying "Elvis, Then, Now & Forever" steadily expanded in his mind, he made notes, and he developed alternative titles for his idea: "Ultimate Starsearch," "American Idol," and "American Superstars."⁶ He does not claim that he ever wrote or produced a stage show or television program bearing any of those names. Instead, he alleges that he put together a "descriptive sales packet" in which he used the mark AMERICAN IDOL and described his idea for a stage or television talent show that might be called "American Idol."⁷ A copy of the document that Keane characterizes as a "descriptive sales packet" is attached as Exhibit G to both his Second Amended Complaint (Docket Entry No. 38) and his Memorandum in Support of Plaintiff's Response to Defendants' Third Motion to Dismiss (Docket Entry No. 45). Keane repeatedly refers to his "descriptive sales packet" and cites the court to the attachment to show that he has alleged facts demonstrating that his "American Idol" idea/mark was used in interstate commerce before the Fox television show called American Idol premiered.

Keane claims that he prepared his "descriptive sales packet" to send to "prospective financial investors, business associates and production companies."⁸ He claims that he sent it to production companies whose names and addresses he retrieved from Variety magazine.⁹ Keane has attached a page from that magazine to his Second Amended Complaint as evidence of the impetus behind his mailings.¹⁰ The page contains production companies' advertisements in which they list contact information and "product highlights"—i.e., the companies' imminent releases of new films, videos, and/or television shows.¹¹ Pearson TV International ("Pearson") is among the production companies whose advertisements appear on the particular page reproduced as Keane's Exhibit H. Keane alleges that Pearson is owned by one of the defendants, Simon Fuller.¹² Keane also alleges that Pearson changed its name and is now known as FremantleMedia NA, another defendant.¹³

None of the advertisements in Keane's Exhibit H contain any text suggesting that the companies were soliciting ideas for future productions from Variety's readers; rather, the advertisements promote the companies' own completed products.¹⁴ Keane does not allege that he had any prior relationship with any of the companies to which he allegedly mailed his "descriptive sales packet." Nor does he claim that, in sending his packet, he was responding to an explicit solicitation. Instead, he alleges that "industry custom" supports his contention that advertisements in trade magazines such as those depicted in Exhibit H are understood within the industry as solicitations for ideas.¹⁵

Keane alleges that Exhibit G, attached to his Second Amended Complaint, is the "descriptive sales packet" that he sent to production companies, including Pearson. Exhibit G includes a cover letter on "NuVista Pictures, Inc." stationery;¹⁶ "NuVista" is a company that Keane started in Iowa in 1998, which no longer exists.¹⁷ The cover letter is dated May 8, 1998, and it contains Keane's signature.¹⁸

On May 27, 1998, twenty-one days after the date on the cover letter of Keane's "descriptive sales packet,"¹⁹ Keane alleges that he placed handwritten notes that he had made back in 1994 in an envelope and mailed it to himself.²⁰ He alleges that these notes describe his concept for a nationally televised talent contest whose proposed names included "American Idol."²¹ He claims that this postmarked mailing is still in his possession and remains unopened.²²

Keane alleges that some time later he also "advertised" his "American Idol" idea on the Internet.²³ He does not describe the content of those efforts or provide any supporting documentation.

Keane does not allege that he received any offers for sponsorship in response to either his mass-mailing campaign or his Internet postings. Instead, he alleges that his "continual" efforts to procure backers were "unsuccessful."²⁴

In addition to the mailings and Internet postings, Keane alleges that, intermittently from 1995 through 2001, he approached several people about investing in or helping to develop his "American Idol" idea. Keane alleges that in 1995 he approached Mitchell Steven Samboceti, who identifies himself as an actor. Keane claims that he described his "American Idol" idea to Samboceti in hopes of enlisting his aid in producing Keane's "American Idol" talent competition idea.²⁵ Keane alleges that at the end of 1996 or beginning of 1997 he then discussed the idea with Thomas Craig Maples.²⁶

Keane alleges that in May of 1998 he discussed his "American Idol" idea with his uncle, Manuel Gerado, who helped him further develop the idea.²⁷ Keane claims that some time in 1998 he also discussed his idea with his father-in-law, David O'Donnell, and that O'Donnell prepared a computer-generated set design for Keane's "American Idol" show based on a hand drawing that Keane had previously made.²⁸ In an affidavit attached to Keane's Second Amended Complaint O'Donnell states that their discussion took place in Marshalltown, Iowa, and that the set was designed with the hope that Keane could produce a musical talent competition in Marshalltown that "would generate enough appeal so as to allow [Keane] to televise it on a national level."²⁹ O'Donnell's affidavit does not state that Keane referred to his idea as a show to be called "American Idol."³⁰

Keane's allegations do not clarify whether the refinements that Gerado allegedly suggested and the set design that O'Donnell produced existed before or after Keane reputedly mailed his "descriptive sales packet" to production companies "[o]n or about...