RMS Titanic, Inc. v. Thomas Zaller, Imagine Exhibitions, Inc.

• Decision Date: 17 October 2013
• Docket Number: No. 1:13–cv–0625–WSD.,1:13–cv–0625–WSD.
• Citation: 978 F.Supp.2d 1275
• Parties: RMS TITANIC, INC. and Premier Exhibitions, Inc., Plaintiffs, v. Thomas ZALLER, Imagine Exhibitions, Inc., a Nevada Corporation, Imagine Exhibitions, PTE, LTD, Imagine Exhibitions, Inc., a Georgia Corporation, and TZ, Inc., a Georgia Corporation, Defendants.
• Court: U.S. District Court — Northern District of Georgia

978 F.Supp.2d 1275

RMS TITANIC, INC. and Premier Exhibitions, Inc., Plaintiffs,

v.Thomas ZALLER, Imagine Exhibitions, Inc., a Nevada Corporation, Imagine Exhibitions, PTE, LTD, Imagine Exhibitions, Inc., a Georgia Corporation, and TZ, Inc., a Georgia Corporation, Defendants.

No. 1:13–cv–0625–WSD.

United States District Court,

N.D. Georgia,

Atlanta Division.

Oct. 17, 2013.

Brian D. Wainger, In–House Legal Services, PLLC, Virginia Beach, VA, Robert William McFarland, Sarah Kate McConaughy, McGuire Woods, LLP, Norfolk, VA, Robert J. Waddell, Jr., McGuire Woods LLP, Atlanta, GA, for Plaintiffs.

Robert Sheffield Thompson, Kim M. Jackson, Sarah Louise Bright, Hawkins Parnell Thackston & Young, LLP, Atlanta, GA, for Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Defendants' Motion to Dismiss Plaintiffs' Amended Complaint [24].

I. BACKGROUNDA. Procedural History

On February 26, 2013, Plaintiffs RMS Titanic, Inc. (“RMS Titanic”) and Premier Exhibitions, Inc. (“Premier”), both Florida corporations with their principal place of business in Atlanta, Georgia, filed a complaint asserting claims against Defendants Thomas Zaller (“Zaller”), Imagine Exhibitions,Inc., a Nevada corporation, (“Imagine–Nevada”), and Imagine Exhibitions, PTE, LTD, a Singapore corporation, (“Imagine–Singapore”) for, inter alia, Lanham Act violations, conversion, breach of contract, and fraud. Plaintiffs are involved in staging a “museum quality” exhibition of the Titanic designed “to take visitors on a chronological journey through the life of the RMS Titanic, from the building of the ship, to life on board during its voyage to America, and finally to the ruins on the ocean floor.” (Compl. ¶¶ 7, 9.) The gist of Plaintiffs' complaint is that Zaller, an American citizen and a Georgia resident who was once employed by Premier, negotiated with Premier in 2011 to stage a Titanic exhibition in Singapore, and then used Premier's intellectual property to stage his own Titanic exhibition in Macau, China, in 2012. Plaintiffs also allege that Zaller's Titanic exhibition infringes the protected trade dress of Plaintiff's exhibition.

On May 6, 2013, Defendants moved to dismiss the complaint, including for lack of subject-matter jurisdiction over the Lanham Act claim and for lack of personal jurisdiction over the Nevada and Singapore defendant corporations. On May 23, 2013, Plaintiffs filed an amended complaint, and named two more defendants: a Georgia corporation also named Imagine Exhibitions, Inc. (“Imagine–Georgia”) and a Georgia corporation named TZ, Inc. (“TZ”). Plaintiffs further allege in the amended complaint that all of the corporate defendants are merely alter egos of Zaller, and that the business operations of each of these entities are managed in Atlanta, Georgia. On June 17, 2013, Defendants once again moved to dismiss this action, pursuant to Rules 12(b)(1), (2), (3), and (6), arguing that this Court lacks subject-matter and personal jurisdiction, that Plaintiffs have failed to state viable claims against the Defendants, and that the Northern District of Georgia is an improper venue for Plaintiffs' claims to be heard. The Court now considers Defendants' ¹ motion.

B. Background Facts

Plaintiffs allege the following facts, which the Court accepts as true at this early stage of the litigation. RMS Titanic and Premier are both Florida corporations with their principal places of businesses in Atlanta, Georgia. RMS Titanic presents museum-style exhibitions of artifacts that it recovered, in its capacity as salvor-in-possession, from the wreckage of the Titanic. This recovery occurred during eight research and recovery expeditions undertaken since the Titanic's discovery in 1985. RMS Titanic partners with various venues to stage its exhibition, known as “Titanic ... The Artifact Exhibition.” The exhibition is designed to “take visitors on a chronological journey” from the building of the ship to its ruin at the bottom of the Atlantic, and focuses on the “compelling human stories as best told through authentic artifacts and extensive room re-creations.” (Am. Compl. ¶ 13.) Visitors who engage the exhibit are provided with a “passenger ticket” with the name and personal information about one of the actual Titanic passengers. ( Id. ¶ 14.)

The overall design of the exhibition is substantially the same in each venue where it is staged. Visitors walk through re-creations of the Titanic's hallways, cabins, and other rooms to simulate being present on the ship. They experience “unique Titanic-related settings, such as standing on a virtual ocean floor amidst the wreckage and debris field.” ( Id. ¶ 16.) Several rooms are based on historical photographs of locations on the Titanic, including the “grand staircase,” while other rooms were designed by RMS Titanic without historical reference. Plaintiffs claim that the room designs are “novel and unique, and contain[ ] an original expression of ideas” subject to legal copyright protection.² Plaintiffs further claim their exhibition contains several works that “are so novel, unique and distinct as to have become signature works which are readily recognized or associated” with Plaintiff's exhibition. ( Id. ¶ 19.)

Zaller is an American citizen and a resident of Georgia.³ He is a former employee of RMS Titanic, and Plaintiffs allege he is now the chief executive officer of Imagine–Nevada, Imagine–Georgia, Imagine–Singapore, and TZ.

On June 13, 2011, Zaller and TZ, representing a promoter in Singapore, negotiated an agreement to present Plaintiffs' Titanic exhibit in Singapore (“the Singapore Exhibition Agreement”). During the negotiations, Zaller asked Plaintiffs to provide him with confidential and proprietary information related to the design and layout of the Titanic exhibition. Zaller asked for “the floor plan (in CAD ⁴ with elevations/ceiling heights) [and] photos” and “a CAD for the last 3 or 4 cities that the exhibition has been in.” ( Id. ¶ 25.) Plaintiffs claim that such confidential and proprietary information ordinarily was not shared with third parties, and so they refused to provide the information Zaller requested. Zaller stated the information was necessary to stage the exhibit in Singapore and assured Plaintiffs that it would be used only for that purpose, ( Id. ¶¶ 25, 26). Plaintiffs agreed to provide the information, but insisted that the Singapore Exhibition Agreement include representations and warranties designed to protect Plaintiffs' proprietary information.⁵ Relying on the representations and warranties in the agreement, and on Zaller's verbal assurances that he would use the information only to stage the Singapore exhibition, Plaintiffs delivered to Zaller and TZ the requested information, including “historical research, drawings, video footage, and photographs,” “CAD files, graphic and text files, ... floor plans, narratives, [and] designs for [Plaintiffs'] signature works,” along with “digital storage devices such as compact discs and flash drives.” ⁶ ( Id. ¶ 28.)

While Plaintiffs' exhibition in Singapore was open, Zaller and the other corporate Defendants, without Plaintiffs' knowledge or permission, contracted with a promoter in Macau, China, to present Defendants' own Titanic exhibit using the confidential information Plaintiffs had provided for the Singapore exhibition. Zaller's competing Titanic exhibition in Macau, called “Titanic.... The Exhibit,” was “substantially similar” to Plaintiffs' exhibit, and included the same “design elements, room re-creations, signature works, photographs, and narratives.” ( Id. ¶ 30.) A comparison of the floor plans of the two exhibits showed that Zaller used, in the Macau exhibit, the same architectural plans, the same artifact and numbering scheme, and nearly identical room “layouts, text and graphic panels, photographs, gobos,⁷ lighting schemes, and color schemes” that were provided and used by Plaintiffs in their Titanic exhibit. ( Id. ¶ 31.) Zaller also used the same font and lettering used in Plaintiffs' exhibit, used underwater video actually owned by Premier, and, in a marketing video for the Macau exhibit, Zaller used photos actually taken at the Singapore exhibit. ( Id.)

Defendants marketed Zaller's Titanic exhibit (“Zaller's Titanic Exhibit”) to “other venues in and outside the United States, as well as on their websites created in the United States, in the media, and at industry shows in the United States.” ( Id. ¶ 35.) From October 13—15, 2012, Imagine–Georgia promoted Zaller's Titanic Exhibit at the Association of Science–Technology Centers Annual Conference in Columbus, Ohio. ( Id. ¶ 36(b).) Plaintiffs allege that this association represents Plaintiffs' “core and target” customers. ( Id.) Defendants also entered into an agreement with the National Geographic Society (“National Geographic”), with which Plaintiffs had partnered in the past, for National Geographic to sponsor Zaller's Titanic Exhibit. Plaintiffs allege the sponsorship agreement was executed in Atlanta, Georgia. ( Id. ¶ 36(c).)

Imagine–Georgia also promoted Zaller's Titanic Exhibit at the American Alliance of Museums Annual Conference in Baltimore, Maryland, held May 20—22, 2013. ( Id. ¶ 36(d).) This association also forms a core of Plaintiffs' target audience. ( Id.) Imagine Exhibitions, Inc.⁸ operates a website, www. imagine exhibitions. com, which markets Defendants' various exhibitions, including Zaller's Titanic Exhibit. ( Id. ¶ 36(e).)

Plaintiffs claim they spent years and millions of dollars to gather historical information, assimilate it into narratives, create stories, draft text, and design and build their Titanic exhibit. Defendants' Macau exhibit was prepared in a matter of a few months, opening in October, 2012. Plaintiffs claim that, Defendants were able to compress the time to design their exhibit by wrongly using Plaintiffs' proprietary information. On January 9, 2013, Plaintiffs' counsel...