Moore v. Marty Gilman, Inc., Civil Action No. 91-13354-RCL.

• Decision Date: 15 May 1997
• Docket Number: Civil Action No. 91-13354-RCL.
• Citation: 965 F.Supp. 203
• Parties: Myrel MOORE and Sondra Moore, Plaintiffs, v. MARTY GILMAN, INC. d/b/a Gilman Gear, and Neil Gilman, Defendants.
• Court: U.S. District Court — District of Massachusetts

965 F.Supp. 203

Myrel MOORE and Sondra Moore, Plaintiffs, v. MARTY GILMAN, INC. d/b/a Gilman Gear, and Neil Gilman, Defendants.

Civil Action No. 91-13354-RCL.

United States District Court, D. Massachusetts.

May 15, 1997.

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COPYRIGHT MATERIAL OMITTED

Douglas H. Meal, Kevin J. O'Connor, Ropes & Gray, Boston, MA, for Myrel Moore and Sondra Moore.

Arthur Z. Bookstein, Boston, MA, Peter Schechter, Darby & Darby, New York City, Donald R. Steinberg, Hale & Dorr, Boston, MA, Harold W. Potter, Jr., Dianne R. Phillips, Sherburne, Powers & Needham, Boston, MA, for Neil Gilman and Marty Gilman, Inc.

Neil Gilman, Gilman, CT, pro se.

YOUNG, District Judge.

Judge Lindsay having transferred motion practice in this case to this Court during such time as he is out of court, this Report and Recommendation is adopted in its entirety and the cross motions for summary judgment are allowed and denied in accordance with the recommendation.

REPORT AND RECOMMENDATION REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCKET NOS. 82 AND 86)

October 7, 1996

KAROL, United States Magistrate Judge.

I. Introduction

Football is a contact sport, but no more so, apparently, than the business of marketing football training equipment, if this case is any indication.

Plaintiff Myrel Moore ("Coach Moore") was a professional football coach. In the early 1970s, while he was a special teams coach for the Denver Broncos, he observed a practice drill in which another coach would roll a large foam ball toward the knees of a defensive player, to simulate an opponent's block and to improve the player's ability to fend it off. Coach Moore was impressed with the drill. Intermittently over the next two decades, he and his wife, co-plaintiff Sondra Moore, worked with consultants to develop a large foam ball of their own. Plaintiffs called their product the "C.A.T. Ball," the initials standing for "Conditioning-Agility-Technique." Coach Moore freely used several versions of the C.A.T. Ball in public, and he and others promoted its use to countless coaches and players through demonstrations, word-of-mouth advertising, videotapes, magazine articles, and product literature. Players and coaches who saw and used it often acknowledged its potential usefulness as a training device. A mass market never developed, however, largely because neither the Moores nor the consultants from whom they sought technical advice could devise a method of construction which would make the C.A.T. Ball sufficiently resistant to cracking and splitting to withstand the punishment inflicted on it by football players.

In mid-1991, Coach Moore sought out defendants — manufacturers and marketers of their own line of sporting equipment — and asked for their help in solving these long-standing problems. Within weeks, defendants, using their own funds and technical expertise, but with some marketing advice provided by Coach Moore, had devised a process for manufacturing a durable and otherwise improved ball. Unfortunately, however, the parties could not agree on an allocation of the anticipated fruits of defendants' labor. Negotiations regarding a possible joint venture soon broke down, and defendants began selling the improved ball on their own, under the trade name the "Shiver Ball." The Moores promptly filed this lawsuit, alleging, among other things, misappropriation of trade secrets, breach of express and implied contract, fraud, and unfair trade practices. Defendants counterclaimed asserting, among other things, misrepresentation and unfair trade practices. Following the close of discovery the parties filed cross motions for summary judgment with respect to each other's affirmative claims. For reasons stated below, I recommend that defendants' motion be GRANTED on all plaintiffs' claims other than unjust enrichment and violation (in one narrow respect) of Mass.Gen.L. ch. 93A and that plaintiffs' motion be GRANTED on all defendants' counterclaims.

II. Background and Prior Proceedings

Background facts and a summary of proceedings through September 14, 1992, are comprehensively set forth in Judge Woodlock's Memorandum and Order denying plaintiffs' motion for a preliminary injunction. (Order Denying Prelim. Inj. at 1-9, Docket no. 52.) It is unnecessary to restate in detail the matters covered in Judge Woodlock's Order, but a few highlights, supplemented by later developments and disclosures, will help put the present motions in context.

Discovery has indisputably revealed that the C.A.T. Ball is a direct descendant of a large foam ball that Roy Carlson developed and introduced to the market in the early 1970s. (Defs.' Fact Statement ("FS") pursuant to D.Mass.R. 56.1 ¶¶ 5-8, Docket no. 86.)¹ A Denver Broncos' coach named Robert Gambold ("Gambold") introduced the Carlson ball to the Broncos and Coach Moore in 1972. (Gambold Aff. ¶ 14, Docket no. 89.) The Carlson ball, marketed under the trade name "Last-A-Foam," was approximately the same diameter (30 inches) and weight (30 pounds) as the ball that Coach Moore, years later, asked defendants to produce. (Id. ¶¶ 3-7.) The Last-A-Foam ball was contemporaneously described and pictured in marketing brochures, and its use was demonstrated in training films that Gambold and Carlson jointly produced. (Id. ¶¶ 8, 12-13.) Gambold personally taught Coach Moore drills in which the Last-A-Foam ball was used to simulate a "cut block," a type of block in which an offensive player attempts to knock a defensive player to the ground by diving at and throwing his body across the defensive player's knees. Gambold and Coach Moore also freely permitted high school coaches and players to observe drills in which the Last-A-Foam ball was used, and many took advantage of the opportunity to do so. (Id. ¶¶ 16-17.)

While the Last-A-Foam ball performed a useful training function, it had a significant drawback: it tended to develop surface cracks, particularly around the seam at which its two hemispheres were joined together. Eventually, it would simply split in half at the seam and have to be taped or glued back together. (Id. ¶¶ 18-20.) A problem as obvious as this, not surprisingly, was visible to all users, including Gambold. Gambold also recognized that, since the cracking and splitting tended to occur at the seam, a solution might be to manufacture the ball in a single piece. (Id. ¶ 20.)

On and off over the years, Coach Moore worked with a series of consultants and spent approximately $5,000 of his own money, (FS ¶ 33), in an effort to develop his own product: one that would be resistant to the splitting and cracking that were evident to him, to Gambold, and to all users of the Last-A-Foam ball from at least as early as 1972. These efforts met with varying degrees of success, but cracking at the seam of Coach Moore's product remained a problem prior to 1991. During the time Coach Moore was undertaking to perfect the C.A.T. Ball, he used various versions of it as a training device and when promoting its use to others. One of Coach Moore's disciples, Coach Bruce Johnson, estimated that thousands of coaches and players observed the use of the C.A.T. Ball in live drills or on videotape. (FS ¶¶ 92-93.) The ball was even featured in newspaper articles and touted in a 1985 national magazine profile of Coach Moore and his coaching methods. (FS ¶ 82.)

In 1991, Coach Moore was hired as a line-backer coach for the New England Patriots. He brought the ball with him to training camp and used it openly in drills. Soon after his arrival, Coach Moore enlisted the help of the Patriots' equipment manager to set up a meeting between Coach Moore and defendant Neil Gilman ("Gilman"), President of defendant Marty Gilman, Inc. ("MGI"). This meeting occurred on September 5, 1991, in Foxboro, Massachusetts.² At the meeting, Coach Moore presented to Gilman a sample C.A.T. Ball and described to him its persistent cracking and splitting problems. He also inquired whether Gilman and MGI would be interested in attempting to develop a ball of approximately the same size and weight, but designed to be more resistant to cracking and splitting and, ideally, less slippery in wet conditions. During the meeting, Coach Moore discussed product specifications and attributes in only the most general terms, leaving it to defendants to experiment with different materials and manufacturing methods in their effort to solve the problems that had plagued the C.A.T. Ball and its predecessor for more than two decades. (FS ¶¶ 45-71.) Coach Moore also advised Gilman that approximately one hundred coaches had expressed an interest in purchasing an improved C.A.T. Ball if the aforementioned problems could be overcome. (Moore Dep. 12/29/91 at 150, FS Ex. 88.)

Several other aspects of the September 5 meeting are significant. First, Gilman claims that Coach Moore falsely represented at the meeting that he had or was about to receive patent protection on the C.A.T. Ball. (FS ¶ 74.) This is the gravamen of defendants' counterclaim. Coach Moore concedes that the C.A.T. Ball is not protected by any patents, (FS ¶ 79), but he denies that he represented otherwise, other than to say that he would have his lawyer send defendants whatever documents existed regarding patents and trademarks.³

Second, the parties agree that they engaged in a very general discussion concerning the possibility of entering into a joint business venture if defendants could produce a marketable ball. Coach Moore claims that his "exact words" to Gilman on that subject were as follows:

I have a ball. I have been trying to get it produced, and I have had very poor luck, basically, getting the qualified product that I'd like. And if you were a person that could produce a ball for me, one ball, and it was to my satisfaction, and you were interested in joining in a business venture, I would be interested in talking about it after you have made the one ball.

(Moore Dep. 12/29/91 at 120, FS Ex. 33.) I will assume for...