Pennolino v. Cent. Prods.
| Decision Date | 11 May 2023 |
| Docket Number | 22-cv-5051 (LJL) |
| Parties | PAUL PENNOLINO, Plaintiff, v. CENTRAL PRODUCTIONS LLC, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Defendant Central Productions LLC (“Defendant” or “Central Productions”) moves, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the fourth fifth, and sixth causes of action in the amended complaint of Plaintiff Paul Pennolino (“Plaintiff” or “Pennolino”) for failure to state a claim upon which relief can be granted. Dkt. No. 25. For the reasons set forth below, the motion to dismiss is granted in part and denied in part.
The Court accepts as true for purposes of this motion the well pleaded allegations of the amended complaint, Dkt. No. 17 (“Amended Complaint” or “Am Compl.”), as supplemented by the documents incorporated by reference therein.
Plaintiff is an accomplished director, assistant director, and producer with almost forty years of experience in the industry. Id. ¶ 14. He has received multiple nominations for Emmy Awards and Directors Guild of America Awards including a 2020 Emmy nomination for Outstanding Director for a Variety Series for John Oliver's Last Week Tonight, and a 2017 Emmy nomination for Outstanding Director for a Variety Special for Full Frontal with Samantha Bee Presents the Not the White House Correspondents Dinner. Id. ¶ 15. He has directed two widely known and culturally significant television programs: The Daily Show with Trevor Noah (“The Daily Show”) and Last Week Tonight with John Oliver. Id. ¶ 16. Defendant is a production company that employed Plaintiff as a director of The Daily Show. Id. ¶ 1. Plaintiff has worked for The Daily Show as a director or assistant director for twenty-one years. Id. ¶ 17.
On June 24, 2020, Plaintiff and Defendant entered into an agreement (the “Personal Services Agreement” or “Agreement,” and the body of such agreement, exclusive of any exhibits, the “Deal Terms”) for Plaintiff to render directing services in connection with The Daily Show, including its thirty-minute and sixty-minute special editions (collectively, the “Series”). Id. ¶ 25. Plaintiff is defined as the “Artist” in the Personal Services Agreement and Defendant is defined as the “Company.” Dkt. No. 27-2 at ECF pp. 2, 5. The Personal Services Agreement confirms the understanding between Plaintiff and Defendant that Plaintiff will “render directing services” in connection with the Series. Deal Terms[1] § 1. Section 1 of the Deal Terms states in full:
SERVICES: Artist shall render artistic and professional services as a director in connection with the Series. Artist agrees and represents that Artist shall: (i) report and be available to render services at all times and places which Company may from time to time reasonably require; (ii) at Company's discretion, render all services customarily rendered by directors in the television industry (including, without limitation, services in connection with rehearsals, directing, editing and dubbing of the Series, commercials, trailers and other filmed material, promotional or otherwise, to be exhibited or telecast in connection with the Series); (iii) act as a consultant for set and graphic design, lighting, bumpers and open for the Series; (iv) attend production planning meetings; and (v) comply with Company's instructions and regulations in all matters, including, without limitation, artistic taste.
Id. § 1; see Am. Compl. ¶ 26.
Section 7 of the Deal Terms states, in relevant part: Deal Terms § 7; see Am. Compl. ¶ 31. The term of the Agreement is from July 2, 2020 through July 1, 2021, subject to the “exclusive, dependent and irrevocable” options of Defendant to extend the Personal Services Agreement, for one-year cycles from July 2, 2021 to July 1, 2022 and from July 2, 2022 to July 1, 2023. Deal Terms §§ 2, 5. Under Section 5 of the Deal Terms the option is deemed exercised “unless Company has provided Artist with written notice to the contrary no later than four (4) weeks prior to the end of the previous Cycle.” Id. § 5. The Deal Terms incorporates certain standard terms and conditions set forth in Exhibit A attached thereto (the “Standard Terms” or “Exhibit A”) and the “minimum terms and conditions of the [Directors Guild of America]-Company Agreement to which this Agreement is subject.” Id. § 8. “In the event of conflict between this Agreement and Exhibit ‘A,' the former shall control.” Id.
In December 2020, Plaintiff co-directed with David Paul Meyer a special of The Daily Show featuring an interview with President Barack Obama (the “Obama Episode”), which was nominated for a Directors Guild of America Award. Am. Compl. ¶¶ 34, 38. Plaintiff received accolades from the executives and the production team for his efforts on the program. Id. ¶ 35. On December 11, 2020, Pam DePace, Supervising Producer for The Daily Show, sent an email to Plaintiff and others with the call sheet for the Obama Episode. Id. ¶ 36. The call sheet listed both Plaintiff and Meyer as directors. Id. ¶¶ 37-38. And, when Plaintiff requested co-directing credit, DePace and Jill Katz, an Executive Producer-both acting on behalf of Defendant- agreed to give him credit. Id. ¶¶ 40, 45. However, Defendant did not give Plaintiff co-directing credit for the Obama Episode and gave sole credit for directing it to Meyer, for which he later received a nomination for a Directors Guild of America Award. Id. ¶¶ 41-43. If Plaintiff had received co-directing credit, he would have also received a nomination for his work on the episode. Id. ¶ 44.
Plaintiff also received numerous assurances from Katz, Jennifer Flanz, who is another Executive Producer of the Series, and DePace that Defendant would exercise its option to renew Plaintiff's employment for the second year of his contract. Id. ¶ 46. On May 28, 2021, however, Naomi Powell, whose relationship to Defendant is not identified in the Amended Complaint, called Plaintiff by telephone and informed him that Defendant would not exercise its option for the second year of his contract. Id. ¶ 45. Following the call, Powell sent Plaintiff an email notifying him that Defendant “ha[d] elected not to exercise its Option to pick up Artist for a Second Cycle in connection with the Series.” Id. ¶ 55. Plaintiff repeatedly pressed for an explanation of why Defendant had refused to exercise its option and was told that it was not performance-based but was related to COVID-19 and the uncertainty surrounding the pandemic. Id. ¶¶ 47-49. However, there was no reason why COVID-19 or the related uncertainty prevented Plaintiff from continuing in his position as a director, and Defendant continued to produce The Daily Show. Id. ¶¶ 50-52.
Plaintiff's fourth cause of action (“Count Four”) alleges breach of the Personal Services Agreement.[2] Plaintiff alleges that Defendant breached the Personal Services Agreement and violated the covenant of good faith and fair dealing (1) by failing to give him “Directed by” screen credit on all episodes of the Series on which he rendered director services (including the Obama Episode) and (2) by preventing him from directing episodes of the Series during the term of the contract, refusing to give him credit for those episodes, and giving credit for those episodes to Meyer. Id. ¶¶ 105-16. Plaintiff's fifth cause of action (“Count Five”) alleges breach of an agreement to give Plaintiff director credit for the Obama Episode. Plaintiff alleges that on or about December 11, 2020, DePace, on behalf of Defendant, offered to have Plaintiff co-direct the Obama Episode and give him credit for directing that episode, by sending him the call sheet listing him as a director. Id. ¶ 118. Plaintiff alleges that he accepted that offer by co-directing the Obama Episode, and thereby performed his obligations under the agreement. Id. ¶¶ 119-20, 122. However, Defendant failed to give Plaintiff credit as a co-director of the Obama Episode. Id. ¶ 123. Plaintiff's sixth cause of action (“Count Six”) alleges breach of an agreement to exercise the option for the second year of his employment agreement. He alleges that, in communications from Katz, Flanz, and DePace, Defendant promised it would exercise its option for the second year of his contract, Id. ¶ 127, but that Defendant breached that agreement when it informed him on May 28, 2021, that it would not exercise the option, Id. ¶ 130.
Plaintiff initiated this case by complaint on June 16, 2022. Dkt. No 1. Defendant filed a motion to dismiss the fourth, fifth, and sixth causes of action for failure to state a claim on August 5, 2022. Dkt. No. 10. In response, Plaintiff filed the Amended Complaint on August 25, 2022, thereby mooting that motion. Dkt. Nos. 17, 28.
On September 23, 2022, Defendant filed this motion to dismiss, along with a memorandum of law and a supporting declaration. Dkt. Nos. 25-27. Plaintiff filed a memorandum of law and declaration in opposition to Plaintiff's motion to dismiss on October 17, 2022. Dkt. Nos. 29-30. On November 7, 2022, Defendant filed a reply memorandum of law in further support of its motion to dismiss. Dkt. No. 33.
The Court held oral argument on the motion to dismiss on April 19, 2023. Dkt. No. 47. At oral argument, the Court requested supplemental briefing addressed to the topic of the relationships between Article 16 of the Freelance Live and Tape Television Agreement (“FLTTA”) and Section 11 of Exhibit A. See Dkt....
To continue reading
Request your trial