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MANTELLO v. HALL

November 13, 1996

JOE MANTELLO, Plaintiff, against MICHAEL HALL and CALDWELL THREATRE COMPANY, Defendants.


The opinion of the court was delivered by: MUKASEY

OPINION AND ORDER

 MICHAEL B. MUKASEY, U.S.D.J.

 Joe Mantello sues Michael Hall and Caldwell Theatre Company for false representation in violation of the Lanham Act, 15 U.S.C. § 1125(a), copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq., "reverse passing off" in violation of plaintiff's common law rights, and unjust enrichment. Defendants move to dismiss on various grounds including lack of personal jurisdiction. For the reasons stated below, defendants' motion to dismiss for lack of personal jurisdiction is granted. The other grounds accordingly need not be considered.

 I.

 Because a motion to dismiss based on lack of personal jurisdiction is "inherently a matter requiring the resolution of factual issues outside of the pleadings . . . all pertinent documentation submitted by the parties may be considered in deciding the motion." Pilates, Inc. v. Pilates Inst., Inc., 891 F. Supp. 175, 178 n.2 (S.D.N.Y. 1995). Therefore, the following facts are drawn from the complaint, affidavits and documentary exhibits submitted by both parties, and on this motion are construed in the light most favorable to plaintiff non-movant. Cutco Inds., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986).

 Plaintiff is a stage director and a citizen of New York. (Compl. P 3) Caldwell Theatre is a regional theater and not-for-profit corporation located in Boca Raton, Florida. (6/6/96 Hall Aff. PP 2, 3, 5) Michael Hall is Caldwell's president, chief executive officer and artistic director, and a citizen of Florida. (Id. P 1)

 In 1994, plaintiff was employed by the Manhattan Theatre Club, located in New York, to direct a play written by Terrence McNally and entitled "Love! Valour! Compassion!" ("the Play"). (Compl. P 6) The Play ran at the Manhattan Theatre Club until February 1995 when it moved to the Walker Kerr Theatre in New York City. ( Id.) The Play received "favorable reviews" and acclaim and won several awards, including a Tony. Plaintiff personally won the Outer Critics Circle and the OBIE awards for his direction as well as the Joe A. Calloway award. (Id. P 8)

 Plaintiff is a member of the Society of Stage Directors & Choreographers ("SSDC") which has entered collective bargaining agreements with Leagues of off-Broadway and Broadway producers. (Id. P 3; Mantello Aff. P 3; 7/24/96 Shechtman Aff. P 2) In connection with the off-Broadway production of the Play at the Manhattan Theatre, and the Broadway production at the Walker Kerr Theatre, plaintiff entered into contracts which incorporated those collective bargaining agreements. (7/24/96 Shechtman Aff., Ex. B, C) Each collective bargaining agreement included a clause that granted to the director all property rights in and to the direction of the Play. Although the parties dispute the scope of that grant of rights, that dispute need not be resolved to decide this motion. (Id. PP 4-5)

 After plaintiff's successful production of the Play, defendants presented the Play, directed by Hall, at defendant Caldwell's theater in Boca Raton over a seven-week period from February 11, 1996 through March 31, 1996. (6/6/96 Hall Aff. P 7) Defendants negotiated with McNally's agent and obtained a license to produce the Play from Dramatists Play Service, Inc., a New York company which apparently licenses the rights to produce plays. (6/6/96 Hall Aff., P 9, Ex. A)

 Plaintiff claims that Hall and Caldwell, in their production of the Play, intentionally recreated his "unique direction and staging" including "the replication of the stage movement, design, lighting and sound." (Compl. P 12) Plaintiff alleges that Hall and his collaborators attended the New York production of the Play and took notes to help copy plaintiff's staging, that defendants obtained literature describing the New York production, that Hall cast actors who had seen the New York production to obtain information about it, and that Hall instructed the designers of his production to attend the New York production to obtain information. (Compl. P 11)

 Plaintiff learned about the Caldwell production when a cast member from his production called him from Florida in February or March 1996. (Mantello Aff. P 6) Plaintiff then flew to Florida on March 3, 1996 and saw the Caldwell production. (Id.) Plaintiff describes specific scenes in the Caldwell production which he claims duplicated his stage directions and conceptions. See (Mantello Aff. PP 8-11)

 Plaintiff filed suit on April 10, 1996. Defendant now moves to dismiss for lack of personal jurisdiction, for improper venue, for transfer under the doctrine of forum non conveniens, for lack of subject matter jurisdiction because plaintiff lacks standing, for failure to state a claim upon which relief can be granted, and finally for a more definite statement pursuant to Fed. R. Civ. P. 12(e)

 II.

 Defendants move first to dismiss based on lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). In a diversity case, or a case arising under federal law which does not provide for service of process on a party outside the state, personal jurisdiction is based on the law of the forum state. See e.g. Omni Capital Int'l. v. Rudolf Wolff & Co., 484 U.S. 97, 108, 98 L. Ed. 2d 415, 108 S. Ct. 404 (1987); Savin v. Ranier, 898 F.2d 304, 305 (2d Cir. 1990). Although the plaintiff bears the ultimate burden of proof, "until an evidentiary hearing is held, it need only make a prima facie showing by its pleadings and affidavits that jurisdiction exists." Cutco Inds., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986). In addition, "those documents are construed in the light most favorable to plaintiff and all doubts are resolved in its favor." Id. Thus, once a plaintiff has alleged facts, which if proved would support jurisdiction, a ...


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