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BRIARPATCH LIMITED L.P. v. GEISLER ROBERDEAU

June 27, 2001

BRIARPATCH LIMITED L.P. AND GERARD F. RUBIN, PLAINTIFFS,
v.
GEISLER ROBERDEAU, INC., PHOENIX PICTURES, INC., MICHAEL MEDAVOY, AND TERRENCE MALICK, DEFENDANTS.



The opinion of the court was delivered by: Sweet, U.S.D.J.

  O P I N I O N

Plaintiffs Briarpatch Limited, L.P. ("Briarpatch") and Gerard F. Rubin ("Rubin") (collectively "plaintiffs") have moved to amend the complaint (1) to add two claims against defendant Terrence Malick ("Malick"); (2) to add the law firm of Frankfurt Garbus Klein & Selz ("Frankfurt Garbus") as an additional proper, necessary or indispensable party; and (3) to conform to evidence obtained during discovery, pursuant to Fed.R.Civ.P. 15(a), 19 and 20. In addition, plaintiffs move to extend the discovery cut-off by six months.

Defendants Phoenix Pictures, Inc., ("Phoenix"), Morris Medavoy ("Medavoy") and Malick oppose.

For the reasons set forth below, the motion will be granted in part and denied in part.

The Parties

Plaintiff Briarpatch is a limited partnership.

Geisler Roberdeau, Inc. ("Geisler Roberdeau") is a dissolved New York corporation that has previously been dismissed as a defendant from this action. See Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623 (RWS), 2000 WL 235284, at *4 (S.D.N.Y. March 1, 2000).

Defendant Phoenix Pictures, Inc. ("Phoenix") is a producer of motion pictures incorporated in California.

Defendant Morris "Mike" Medavoy*fn1 is the founder and chairman of Phoenix, and resides in California.

Defendant Terrence Malick*fn2 is a writer and director who resides in France. His films include "The Thin Red Line," "Badlands," and "Days of Heaven."

Background and Prior Proceedings

The background and procedural history of this case has been set forth in a prior opinion of this Court, familiarity with which is assumed. See Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623 (RWS), 2000 WL 235284 (S.D.N.Y. March 1, 2000). This action is related to Briarpatch Ltd., L.P. v. Pate et al., No. 99 Civ. 8968 (the "Pate Action"), and to Briarpatch Ltd., L.P. v. Stage Fright LLC et al., No. 99 Civ. 10022 (the "Stage Fright Action"). Plaintiffs are identical in each of these actions, which originated in New York State Court and have made their way back and forth between the state courts and this Court repeatedly over the last several years.

Plaintiffs filed the first action in New York State Supreme Court, New York County, on December 17, 1998 (the "1998 New York Action"), against Robert Geisler ("Geisler") and John Roberdeau ("Roberdeau"), alleging counts of fraud, breach of fiduciary duty, and other claims arising from Geisler and Roberdeau's alleged misappropriation of funds invested by Rubin with Briarpatch for the purpose of developing certain motion picture and theatrical properties. See Pate, 2000 WL 52707, at *1.

On July 12, 1999, after a trial, the New York State Supreme Court issued a decision in favor of plaintiffs, finding, inter alia, that "The Thin Red Line," "The English Speaker," and "Sansho the Bailiff" were projects belonging to the Briarpatch limited partnership, not to Geisler, Roberdeau, their affiliated companies, or the Briarpatch general partners.

The complaint in the instant action (the "Complaint") alleges that Rubin contributed at least $750,000 for development of the "Thin Red Line" project, including funds to acquire the film rights to the underlying novel of the same name by James Jones, and to pay for writing and development of the screenplay by Malick; $500,000 for the "English Speaker" project, including funds for Malick's writing of the screenplay; $1,200,000 for the "Sansho the Bailiff" project, including funds for Malick's writing of the stage play; and $2,000,000 for the "White Hotel" project, including funds to acquire rights to the novel of the same name by D.M. Thomas and to pay for screenplay adaptations by Dennis Potter and others, and for revisions by Chuck Mee.

The Complaint further alleges that Malick knew his fees for work on these projects from 1989 through January 1, 1994 were paid with funds provided by Rubin, not Geisler or Roberdeau.

Medavoy is alleged to have entered into an agreement with Geisler and Roberdeau in March 1995, under which Medavoy loaned Geisler and Roberdeau $100,000, which would be repaid from the first revenues received with respect to rights to "The Thin Red Line," "The English Speaker," and "The White Hotel." Medavoy is also alleged to have known that the funding for these projects had been provided by Rubin, not Geisler or Roberdeau. Defendants are further alleged to have entered into a scheme by early 1996 to cut Rubin and Briarpatch out of the "Thin Red Line" project. Phoenix acquired the rights to the project by paying Geisler Roberdeau approximately $1,500,000, of which $600,000 were allegedly "producer fees" even though Phoenix allegedly did not intend to use Geisler or Roberdeau as producers. Phoenix also hired Malick to direct the film.

Malick also allegedly failed to produce a rewrite of "Sansho the Bailiff" and, as a condition to being hired to direct "The Thin Red Line," required that restrictions be placed on use of "Sansho the Bailiff."

Finally, it is alleged that Malick and Geisler Roberdeau entered into an agreement on October 1, 1996 to give Malick an eight-and-one-half year exclusive option to direct "The English Speaker," without consideration, thereby devaluing the rights to the project. Again, this option was allegedly required as a prerequisite to Malick's agreeing to direct "The Thin Red Line."

None of the activities described above was ever disclosed to Rubin, allegedly because of a desire on the part of defendants to conceal Geisler and Roberdeau's diversion and misappropriation of funds.

The Complaint, which was filed in New York State Court on August 18, 1999, alleges causes of action for conspiracy to breach fiduciary duty, aiding and abetting breach of fiduciary duty, trover and conversion, unjust enrichment, a declaratory judgment as to rights to the various projects, and breach of contract.

Phoenix filed a notice of removal on September 10, 1999, on the basis of federal question and diversity of citizenship grounds. Medavoy ...


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