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MTV NETWORKS v. CURRY

October 28, 1994

MTV NETWORKS, a division of Viacom International, Inc., Plaintiff,
v.
ADAM CURRY, Defendant.


McKENNA


The opinion of the court was delivered by: LAWRENCE M. MCKENNA

McKENNA, D.J.

 Plaintiff, MTV Networks ("MTVN"), brought this action against Defendant, Adam Curry ("Curry"). Plaintiff now moves the Court to dismiss Curry's counterclaims, pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative, for a more definite statement of the counterclaims, pursuant to Rule 12(e). For the reasons stated below, Plaintiff's motion is granted in part and denied in part.

 In the course of resolving a motion to dismiss pursuant to Rule 12(b)(6), the Court reads the complaint generously, accepting the truth of, and drawing all reasonable inferences from, the well-pleaded factual allegations. Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993); accord California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972); Allen v. Westpoint-Pepperell Inc., 945 F.2d 40, 44 (2d Cir. 1991); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied, 118 L. Ed. 2d 208, 112 S. Ct. 1561 (1992); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991).

 
When determining the sufficiency of plaintiff['s] claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in . . . [the] complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff['s] possession or of which plaintiff[] had knowledge and relied on in bringing suit.

 Brass, 987 F.2d at 150 (citing Cortec, 949 F.2d at 47-48).

 The Court will only dismiss a complaint for failure to state a claim when the Court finds beyond a doubt that plaintiff "can prove no set of facts" to support the claim that plaintiff is entitled to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The standards for dismissing claims under Rule 12(b)(6) are identical to the standards for dismissing counterclaims. Schatt v. Curtis Management Group, Inc., 764 F. Supp. 902, 915 (S.D.N.Y. 1991).

 Where, as here, the parties have submitted material outside the pleadings, the Court must either exclude those materials from consideration, or convert the motion to one for summary judgment. Fed. R. Civ. P. 12(c). See generally 5 C. Wright & A. Miller, Federal Practice and Procedure ยง 1366 (1969 & Supp. 1986). The Court, in its discretion, has chosen to exclude these materials, and Plaintiff's motion is considered one for dismissal for failure to state a claim.

 II.

 A. Facts

 The facts alleged in Curry's Answer and Counterclaims are as follows. Curry served as a video disc jockey ("VJ") for MTVN under a written contract through May 1, 1992. (Countercl. P 2.) He continued to serve as an MTVN VJ through April, 1994, under "informal" terms. (Id. PP 2, 18.) Curry also engaged in activities in the contemporary music industry that were not directly related to his MTVN employment, such as hosting radio programs and live entertainment events. (Id. P 3.)

 In approximately June, 1993, Curry met with MTVN Vice President Matthew Farber ("Farber") and discussed, inter alia, an Internet service *fn1" he was developing with the Internet site address *fn2" "mtv.com". (Id. P 9.) Curry alleges that while Farber disclaimed any interest by MTVN in entering a joint venture, he indicated that Curry was free to continue development of the Internet site at his own expense. (Id.)

 By approximately August, 1993, Curry had announced the mtv.com address on MTVN broadcasts. (Id. P 8.) On the afternoon of one August taping, Curry claims to have had a conversation about mtv.com with Joel Stillerman ("Stillerman"), a senior MTVN executive. (Id. P 10.) In this conversation Stillerman "made clear that MTVN had no objection to Curry's use and development of the mtv.com address." (Id. P 11.)

 Curry alleges that between August, 1993 and April, 1994, he discussed the mtv.com site with other MTVN personnel on "numerous" occasions, receiving encouragement in his continuing development efforts. (Id. P 13.) During the period August, 1993, to mid-January, 1994, Curry claims that MTVN programmers placed the graphic letters "mtv.com" on the television screen for viewers of the MTVN program Top Twenty Countdown." (Id. P 14.) In reliance on his discussions with MTVN executives and personnel, Curry continued to develop mtv.com at his own expense. (Id. PP 9, 11, 23.)

 On January 19, 1994, MTVN formally requested that Curry cease use of the mtv.com address. (Id. P 15.) However Curry alleges not only that MTVN programming continued to make on air references to the address, but that Stillerman asked him, sometime in February, to include certain materials at the mtv.com site. (Id.)

 By the spring of 1994, Curry's mtv.com address had been accessed by millions of Internet users. (Id. P 16.) Curry credits this success, in part, to a computer bulletin board *fn3" that facilitates communication between performers and other music professionals -- a ...


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