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OSCAR PRODUCTIONS v. ZACHARIUS

June 28, 1995

OSCAR PRODUCTIONS, INC., and JENNIFER O'NEILL, Plaintiffs, against WALTER ZACHARIUS and KENSINGTON, PUBLISHING CORP., Defendants.

Peter K. Leisure, District Judge


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 This is an action brought by Oscar Productions, Inc. ("Oscar") and Jennifer O'Neill ("O'Neill") against Walter Zacharius ("Zacharius") and Kensington Publishing, Corp. ("Kensington"). Plaintiffs seek damages for breach of contract and for six other claims all deriving from the non-fulfillment of an alleged agreement concerning the writing of a romance novel. Defendants now move this Court for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, as to plaintiffs' first cause of action, and move to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the other six claims in plaintiffs' complaint. For the reasons stated below, defendants' motions are granted in part and denied in part.

 BACKGROUND

 Plaintiff O'Neill is a national celebrity who has appeared in movie and television productions, has been a spokesperson for commercial products, and has written a number of screenplays. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and to Dismiss the Complaint ("Plaintiff Mem.") at 3. Oscar is O'Neill's management and production company, and receives all fees paid on account of O'Neill's activities. Id. Kensington is a New York corporation that operates primarily as a mass market publisher of romance novels and other paperback books. See Defendants' Memorandum of Law in Support of their Motion for Partial Summary Judgment and to Dismiss the Complaint ("Defendant Mem.") at 3. Zacharius is the Chairman of the Board and Chief Executive Officer of Kensington. Id.

 In the summer and fall of 1992, O'Neill was approached by Witt Stewart ("Stewart") and solicited to write a novel for Kensington. Plaintiff Mem. at 3. Stewart informed O'Neill that Kensington wanted her to author a novel in a series of romances developed for women in their forties (the "Series"). Id. O'Neill and Stewart met with Ann LaFarge ("LaFarge"), a senior editor at Kensington, on October 25, 1992. Defendant Mem. at 3. Along with a letter dated October 28, 1992, LaFarge sent O'Neill a couple of books from the Series and a tip sheet on how to write books. *fn1"

 On or about November 4, 1992, O'Neill met with Zacharius for dinner, and Zacharius told O'Neill that he wanted her to write a novel. Plaintiff Mem. at 4. The next day, Zacharius took O'Neill on a tour of Kensington's offices and she then met with Zacharius and Barbara Bennettc ("Bennett"), Kensington's general counsel and contracts manager. Id. at 5; Defendant Mem. at 5. Plaintiffs allege that at this meeting, the parties agreed on a number of points and entered into a contractual relationship. Plaintiffs further allege that in a letter to O'Neill, dated November 13, 1992, Bennett memorialized the terms of the agreement. Plaintiff Mem. at 5.

 Subsequent to the meeting with Zacharius and Bennett, O'Neill asserts that she promoted the Series in a number of television appearances. Moreover, she contends that she only engaged in such promotional activity after specific further assurances from Zacharius that they had a deal. Plaintiff Mem. at 6.

 The parties do not dispute that O'Neill proceeded to submit an outline and the first forty pages of her proposed book. Defendants contend that O'Neill's written submissions were unacceptable. In January 1993, Kensington ceased all communication with O'Neill and advised Stewart that it no longer wished to proceed with O'Neill's proposed novel.

 DISCUSSION

 I. The First Claim

 A. The Standard for Summary Judgment

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). Summary judgment "is appropriate only 'after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Thornton v. Syracuse Sav. Bank, 961 F.2d 1042, 1046 (2d Cir. 1992) (quoting Celotex, 477 U.S. at 322); accord Irvin Indus., Inc. v. Goodyear Aerospace Corp., 974 F.2d 241, 245 (2d Cir. 1992).

 "In deciding whether to grant summary judgment all inferences drawn from the materials submitted to the trial court are viewed in a light most favorable to the party opposing the motion. The nonmovant's allegations are taken as true and it receives the benefit of the doubt when its assertions conflict with those of the movant." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir. 1992). "Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." Id., accord Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991); see also Lang, 949 F.2d at 580 ("In determining how a reasonable jury would decide, the court must resolve all ambiguities and draw all inferences against the moving party."); Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991) ("Viewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate.").

 The substantive law governing the case will identify those facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. "The judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id., 477 U.S. at 249.

 The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion" and of identifying which materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. Once a motion for summary judgment properly is made, however, the burden then shifts to the nonmoving party, which "'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)); accord Brass v. American Film Technologies, Inc., 987 F.2d 142 (2d Cir. 1993). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). "Conclusory allegations will not suffice to create a genuine issue. There must be more than a 'scintilla of evidence,' and more than 'some metaphysical doubt as to the material facts.'" Delaware & Hudson Ry. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252, and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)), cert. denied, 500 U.S. 928, 111 S. Ct. 2041, 114 L. Ed. 2d 125 (1991). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (citations and quotation omitted); see also Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138 (2d Cir. 1992) (the court must "consider the record in the light most favorable to the non-movant. However, the non-movant may not rest upon the mere ...


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