Wells v. Universal Pictures Co.

• Decision Date: 14 December 1945
• Citation: 64 F. Supp. 852
• Parties: WELLS v. UNIVERSAL PICTURES CO., Inc., et al.
• Court: U.S. District Court — Southern District of New York

64 F. Supp. 852

WELLS v. UNIVERSAL PICTURES CO., Inc., et al.

District Court, S. D. New York.

December 14, 1945.

Archibald Palmer, of New York City, for plaintiff.

Julian T. Abeles, of New York City (Julian T. Abeles, Leopold Bleich, and Samuel D. Cohen, all of New York City, of counsel), for Universal Pictures Company, Inc., Universal Film Exchanges, Inc., Big U Film Exchange, Inc., Bud Abbott and Lou Costello.

J. Robert Rubin, of New York City, for Loew's Incorporated.

Boudin, Cohn & Glickstein, of New York City (Louis B. Boudin, of New York City, of counsel), for defendant Joseph Palladino, also known as Joey Faye.

KNOX, District Judge.

Plaintiff's complaint is to the effect that he is the author of an uncopyrighted comedy sketch called "Flugel Street" which, with his consent, was publicly presented in numerous theatrical productions throughout the United States in the season of 1918-1919, and subsequent years. This literary property and all rights in and to the same, it is claimed, are still owned and possessed by plaintiff.

The pleading alleges that on or about June 2, 1942, Joseph F. Palladino, one of the defendants, through fraudulent representations and misstatements of fact, wrongfully copyrighted the sketch under Class D, ump. No. 80434, in the Copyright Office of the United States. Palladino, in order to disguise the authorship and ownership of the sketch, is said to have changed the spelling of the title to "Floogle Street."

The complaint then proceeds to aver that in 1943 Universal Pictures Co., Inc., manufactured a motion picture entitled "This is the Life," which wrongfully incorporates the plot and comedy effect of plaintiff's literary production, and that the picture company, and each of the other defendants have since, and in one way or another, participated in the piracy.

As a result of all this, plaintiff asks that defendants be restrained from further infringement upon his rights; that they be required to account for profits received, and be held for damages sustained. Furthermore, plaintiff asks that the Palladino "Floogle Street" copyright be declared null and void.

Plaintiff is a citizen of the United States residing in the City of New York. Although the complaint does not so state, I shall assume that he is also a citizen of New York. Universal Pictures Co., Inc., Universal Film Exchange, Inc., and Loews, Inc., are corporations organized under the laws of Delaware. Bud Abbott and Lou Costello are citizens of California, while Joseph F. Palladino is a citizen of the State of New York. Big "U" Film Exchange Inc., is a corporation of the last mentioned State. The amount in controversy is conceded to be in excess of $3,000, exclusive of interest and costs. But, as already shown, if my assumption as to plaintiff's New York citizenship be correct, there is no diversity of citizenship between him and two of the defendants, viz., Palladino and Big "U" Film Exchange, Inc.

In order for this court to exercise jurisdiction, it is necessary, under the provisions of 28 U.S.C.A. § 41(1) (7), that the suit should arise under the Constitution or laws of the United States (in this instance, the copyright laws) or be between citizens of different states.

Upon the assertion that this action does not fall within any of these alternatives, and that the court, therefore, is without jurisdiction, the defendants here ask for a dismissal of the complaint. They rely, in part, on a long line of federal court decisions which hold that when jurisdiction is founded upon diversity of citizenship between one plaintiff and several defendants, such diversity must exist between such plaintiff and each of the defendants. These pronouncements start with Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435, and continue over the years as far, at least, as Olsen v. Jacklowitz, 2 Cir., 74 F.2d 718, 719, in which it was said:

"But when a suit, there cognizable (in the United States District Court) only on the ground of diversity of citizenship, is originally brought in a federal court, the plaintiff's choice of parties is controlling on the question of jurisdiction."

From these cases, it is perfectly apparent that if jurisdiction is here to be sustained, it must be on a basis other than that of diversity of citizenship.

Defendants further say that inasmuch as plaintiff never copyrighted his version of "Flugel Street," the suit can not properly be held to be founded on a law of the United States. This, obviously, is so. Plaintiff, nevertheless, argues that such rule should not here be applied by reason of his allegations that his literary production was fraudulently copyrighted by Palladino, and that he is entitled to a decree declaring that copyright to be null and void.

With this contention, I can not agree. Aside from the question of plaintiff's right to a declaratory judgment under the provisions of Section 400 of Title 28 U.S.C.A., which will be discussed later, the most that can be said in favor of plaintiff's position, is that he now asserts a common law right, and anticipates that Palladino, in response thereto, will plead his allegedly fraudulent copyright. This is far from being enough to sustain jurisdiction. On this subject matter, Mr. Justice Gray in State of Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 657, 38 L.Ed. 511, had this to say:

"And by the settled law of this court, as appears from the decisions above cited, a suggestion of one party that the other will or may set up a claim under the constitution or laws of the United States, does not make the suit one arising under that constitution or those laws."

Another case closely in point is that of Cohan v. Richmond, 2 Cir., 86 F.2d 680, 682. In that litigation, plaintiff sought an injunction and accounting against persons who allegedly copyrighted, printed and sold songs of which plaintiff claimed to be the author. In deciding the matter, the court said:

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