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