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May 17, 1984


The opinion of the court was delivered by: SAND



 Plaintiff Wilmot Fraser instituted this action in 1981. Upon defendant's request, Mr. Gillespie was joined as a necessary party in 1983. Plaintiff Fraser then served a third amended complaint which names Mr. Gillespie as a co-plaintiff and asserts five causes of action. Defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56(b). For the following reasons, we conclude that a grant of partial summary judgment pursuant to Fed.R.Civ.P. 56(d) is proper.


 Plaintiffs signed an agreement with defendant on July 4, 1976 under which defendant agreed to publish and sell an autobiography of plaintiff Gillespie co-authored by plaintiff Fraser. This agreement obligated defendant to pay plaintiffs a $20,000 advance to be charged against their future earnings from the book. The publisher retained the right to "publish the work at its own expense, in the style and manner and at the price which it shall deem best suited to its sale. . . ." Contract P2. It was also agreed that certain specific expenses incurred in preparing the manuscript for publication would be charged to plaintiffs rather than defendant. The agreement concluded with a standard disclaimer to the effect that any previous oral or written representation were superseded and that the agreement could not be changed, modified or discharged orally. Contract P35.

 Pursuant to this agreement, plaintiffs co-authored a book entitled "To Be Or Not To Bop" and defendant paid the specified advances. The book was subsequently published in English on August 3, 1979 with an initial printing of 12,500 copies. Since this initial printing, 6,000 more copies have been printed by defendant and the book has been reprinted in French, Italian, Swedish and Finnish. The British rights to the book were sold to W.H. Allen & Co. in 1978 and the Nostalgia Book Club purchased book club rights in 1979.

 Prior to the book's publication, plaintiff Fraser began to dispute the promotional and advertising plans which defendant had developed for the book.These disputes continued after the date of publication and have culminated in plaintiffs' allegation that defendant breached the publishing agreement by not using "its best or reasonable good faith efforts to advertise, promote and exploit the said work." Third Amended Complaint P15. Plaintiffs state that this negligence by the defendant is evidenced by the alleged lack of a comprehensive marketing plan for the book, the inadequate size of the first printing, the failure to have an initial printing in foreign languages, and the failure to mention plaintiff Fraser in advertisements. Defendant has responded that it used good faith efforts to promote the book as shown by the size of the first printing, the $9,000 in advertising expenses allegedly spent on the book, the distribution of over 1,000 free copies, and its efforts to sell subsidiary, paperback and foreign rights to the book.

 Plaintiffs also allege that defendant has breached several other clauses of the publishing agreement and thereby converted monies due plaintiff to its own use. These alleged breaches include delays in sending plaintiff his royalty statements and a certified statement, the deduction of $1,286.96 from plaintiff Fraser's royalties for publishing expenses, a delay in accounting to plaintiffs for the sale of book club rights, and the failure to timely reprint the work after the initial stock was depleted. Defendant has denied these and other related allegations and claims that any delays that may have in fact occurred were reasonable or were caused by plaintiffs.

 Plaintiffs have also alleged that defendant fraudulently induced plaintiffs into signing the publishing agreement by orally promising that defendant would use its best efforts to advertise, promote and exploit the book. Defendant claims this allegation must be rejected both as a matter of law and a matter of fact.

 Plaintiffs finally allege that defendant discriminated against plaintiffs, both of whom are black, on account of their race. Defendant has denied this allegation.

 As to damages, plaintiffs contend that because defendant's actions were allegedly actuated by evil and reprehensible motives with malicious intent, punitive or exemplary damages should be assessed against defendant. Defendant claims there is no basis in law for this allegation.


 Pursuant to Fed.R.Civ.P. 56(d), a court can issue an order that specifies the facts which do not appear to be in substantial controversy if it finds that full summary judgment cannot be granted because there are still genuine issues of material fact to be tried. See Moss v. Ward, 450 F. Supp. 591, 594 (W.D.N.Y. 1978); Belinsky v. Twentieth Restaurant, Inc., 207 F. Supp. 412, 413 (S.D.N.Y. 1962). Upon our review of the pleadings and the affidavits and briefs submitted by each party, we find that there are no triable issues of fact as yet presented with respect to plaintiffs' claims for racial discrimination and ...

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