Twentieth Century-Fox Film Corporation v. Taylor

• Decision Date: 26 March 1965
• Citation: 239 F. Supp. 913
• Parties: TWENTIETH CENTURY-FOX FILM CORPORATION, Plaintiff, v. Elizabeth TAYLOR and Richard Burton, Defendants.
• Court: U.S. District Court — Southern District of New York

239 F. Supp. 913

TWENTIETH CENTURY-FOX FILM CORPORATION, Plaintiff, v. Elizabeth TAYLOR and Richard Burton, Defendants.

United States District Court S. D. New York.

March 26, 1965.

Royall, Koegel & Rogers, New York City, for plaintiff, Frederick W. R. Pride, New York City, of counsel.

Weisberger & Frosch, New York City, Gang, Tyre, Rudin & Brown, Los Angeles, Cal., for defendants, Milton A. Rudin, Los Angeles, Cal., of counsel.

WEINFELD, District Judge.

The plaintiff, Twentieth Century-Fox Film Corporation, moves to remand¹ this action to the New York State Supreme Court whence it was removed to this Court on the petition of the defendant Richard Burton. The action is one of a series of litigations arising out of the production of the motion picture "Cleopatra," in which Burton and Elizabeth Taylor, now husband and wife, play principal roles. Twentieth Century-Fox seeks to recover substantial damages based upon five separate causes of action, the first and fifth of which are against Taylor individually, the second against Burton individually, and the third and fourth against them severally and jointly.

Plaintiff, a Delaware corporation, alleges its principal place of business is New York. Taylor is a citizen of the United States, but is not a citizen of any state.² Burton is a British subject, not resident in any state of the United States.

I. REMOVAL OF THE SECOND CAUSE OF ACTION.

Had Burton, an alien, been named as the sole defendant, removability could not be questioned, since the case would be within the original diversity jurisdiction of this Court.³ And so, too, it is beyond challenge that had Taylor been named as the sole defendant, the action would have been non-removable.⁴ However, ever, the joinder of the claims against them enabled Burton to remove the entire case to this Court upon his allegation that the second cause of action, pleaded solely against him, came within the purview of 28 U.S.C. § 1441(c), which provides:

"Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

The section, with its "separate and independent claim or cause of action" removability standard, was enacted in 1948,⁵ according to the revisers of the Judicial Code, to avoid the confusion which had beset the earlier "separable controversy" test and also in the hope that it would "somewhat decrease the volume of Federal litigation."⁶ The new provision had its first, and thus far only, consideration by the Supreme Court in American Fire & Cas. Co. v. Finn.⁷ There the plaintiff, a Texas citizen, joined two foreign insurance companies and their local agent, also a Texas citizen, claiming that either of the companies was alternatively liable for a fire loss under a policy issued by each separately, or that the agent was liable for failure to keep the property insured. The Court, in upholding an attack upon removal jurisdiction by the very defendant which had successfully invoked it in the courts below but had failed in the action itself, held:⁸

"* * * where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c)."

In applying the test to the case before it, the Court attached significant weight to the circumstances that "the single wrong for which relief is sought is the failure to pay compensation for the loss on the property"; that the "facts in each portion of the complaint" involved the local agent, plaintiff's co-citizen; that the damages arose from a single incident; and that each of the three claims asserted involved "substantially the same facts and transactions."⁹ and consequently concluded that removal was improper.

Twentieth Century-Fox, relying heavily upon Finn, contends that the acts and conduct of the two defendants set forth in the first four causes of action are so interlaced that in substantial measure they give rise to and establish the two individual causes of action for breach of each respective employment agreement, as well as the two causes of action, one for the inducement of the breach, and the other for tortious interference — that, as in Finn, in plaintiff's words, "one `fire' both induced and resulted in the simultaneous breach of two employment contracts so as to render this action the second cause of action not removable as a `separate and independent cause of action' for breach of one of the agreements."

The statutory test is more easily stated than applied. When multiple defendants are alleged to have contributed concurrently or jointly to a single tortious impact¹⁰ and claims are stated against alternative defendants,¹¹ removal is uniformly denied. But the courts are split as to removability where one defendant is accused of breach of contract and another is charged with inducing or exploiting the breach,¹² and where co-insurers are sued on separate contracts covering a single loss.¹³ The present case, however, fits none of these categories. Having examined the judicial gloss which Finn and other decisions have put on section 1441(c), the Court concludes that the "second cause of action," the basis of Burton's removal petition, constitutes "a separate and independent claim or cause of action" within the statute. Since this conclusion necessarily is governed by the allegations of the complaint,¹⁴ we turn to it.

The first cause of action is against Taylor individually for breach of her contract, and specifies a series of acts and conduct which gives rise to the claim. These include allegations that she failed to perform her services with diligence, care and attention; that she reported for work in an unfit condition; that she allowed herself to become unphotographable and unfit to perform her services; that she failed to report for work; that she failed to report on time; that she suffered herself to be held up to scorn, ridicule and unfavorable publicity by her public conduct; and that she conspired with and induced others to breach their agreements with plaintiff.

The second cause of action against Burton for breach of his employment contract contains allegations of conduct identical to those charged against Taylor. There are, however, allegations that he breached the contract in other respects.

The third cause of action against Taylor and Burton, individually and jointly, charges that each induced the other, and others, to breach the respective employment agreements as set forth in the first and second causes of action; this cause of action specifies that each induced the other:

"30.(a) * * * to engage in conduct with each other although each was to public knowledge at these times, married to another, so as to hold the other up to public scorn and ridicule;

"30.(b) * * * not to abide by and observe reasonable and customary rules, directives, regulations and orders for conduct and deportment during the course of production * * *."

The fourth cause of action against Taylor and Burton, individually and jointly, charges interference with and injury to plaintiff's business and property rights by the acts and conduct complained of in the prior causes of action.

The fifth cause of action is solely against Taylor and alleges that she is the alter ego of MCL Films, S.A., and seeks a declaratory judgment that any money due from Twentieth Century-Fox to MCL may be set off against any judgment against Taylor.

The hard core of the rationale of the Finn holding is that the plaintiff suffered a single wrong arising out of the fire, which entitled him to but one recovery, sought alternatively against one of the three defendants. The situation here is quite unlike that. Basically there are two separate and distinct employment contracts, one with each defendant, for services of a highly specialized and individual nature. This circumstance at once negates rather than supports plaintiff's position that individual breaches of the two separate contracts give rise to a single wrong and a single claim for damages.

The contracts were entered into on different dates. Taylor performed services almost a year before Burton entered into his agreement. Each alleged breach, predicated upon individual acts, gives rise to a separate wrong and a separate claim for damages unrelated to the breach of the employment contract with the other defendant. The fact that the services were to be rendered by each performer in the production of one film does not coalesce violations of the two separate contracts into a single wrong.¹⁵ While it is true that the same kind or type of conduct is asserted to constitute the breach of each separate contract, it does not follow that the acts resulted, as plaintiff charges, in the "simultaneous breach of two employment agreements." For example, it is alleged that each defendant rendered himself or herself unfit to perform required services; failed to report for work; to report on time; and refused to follow directions. But it is not alleged, and it does not appear from the complaint, that one defendant's violation of contractual duty is necessarily related to the other; that their alleged absences from work or tardiness in appearing, or refusal to follow directions occurred simultaneously, at the same place or under similar circumstances. Moreover, as already noted, there are some allegations of breaches different in the one cause of action from the other. Thus, Taylor is charged with having permitted herself to become unphotographable. No such claim is made against Burton. On the other hand, charges are made against him that are not made against her—to wit, that he disabled himself from performing in the manner directed and at times...