The opinion of the court was delivered by: Sweet, District Judge.
Presently before the. Court are eight motions in three
lawsuits constituting the most recent convulsion of litigation
that has occupied these parties and their lawyers in this Court,
the Supreme Court of the State of New York, County of New York,
and the Bankruptcy Court, Dallas Division, since 1998. The
actions are: Geisler, et al. v. Briarpatch Limited, L.P., et
al., 01 Civ. 8564(RWS); Geisler v. Pate, et al., 01 Civ.
4767(RWS); and Briarpatch Limited, L.P., et al. v. Geisler
Roberdeau Inc., et al., 99 Civ. 9623(RWS).
(1) A motion by defendants Briarpatch Ltd. L.P. ("Briarpatch
Limited" or the "Partnership"), Gerard F. Rubin ("Rubin"), Barry
L. Goldin ("Goldin"), and Richard Brick ("Brick"), to dismiss
pursuant to Rule 12(b), Fed.R.Civ.P., the complaint of Robert
Geisler ("Geisler"), John Roberdeau ("Roberdeau"), Briarpatch
Film Corp. ("BFC"), and Briarpatch Theatre Corp. ("BTC") in
Civil Action 01 Civ. 8564.
(2) A motion by defendants Briarpatch Limited and Rubin to
dismiss pursuant to Rule 12(b), Fed.R.Civ.P., the complaint of
Geisler, Roberdeau, BFC and BTC in Civil Action 01 Civ. 4767.
(3) A motion by defendant Steven Pate and Pate & Pate
Enterprises (collectively "Pate"), also brought pursuant to
Rule 12(b), Fed.R.Civ.P., to dismiss the complaint in Civil Action 01
(4) Plaintiff Samuel Myers' ("Myers") motion for partial
summary judgment pursuant to Rule 56, Fed.R.Civ.P., of Civil
Action 01 Civ. 8564, with respect to the rights to work entitled
"The White Hotel."
(5) Geisler and Roberdeau's cross-motion in Civil Actions 01
Civ. 8564 and 01 Civ. 4767 for the appointment of a receiver and
declaratory judgment pursuant to Rule 66, Fed.R.Civ.P.
(6) Briarpatch Limited and Rubin's motion to vacate the
clerk's certificate of default pursuant to Rules 4, 12(b) and
55(c), Fed.R.Civ.P., in Civil Action 01 Civ. 4767.
(7) Geisler and Roberdeau's cross-motion in Civil Action 01
Civ. 8564 to disqualify Barry L. Goldin ("Goldin") as counsel
pursuant to Disciplinary Rules 5-101, 5102, 5-105, and/or 5-108.
(8) Geisler & Roberdeau's cross-motion to consolidate all
three actions pursuant to Rule 42, Fed.R.Civ.P.
For the reasons set forth below, the motions to dismiss Civil
Actions 01 Civ. 8564 and 01 Civ. 4767 are granted. The remaining
motions are therefore dismissed.
Briarpatch Limited is a New York limited partnership formed
under a Limited Partnership Agreement, dated January 1, 1994,
between Rubin as sole limited partner and, as general partners,
five companies owned and operated by Geisler and Roberdeau:
Briarpatch Construction Corp. ("BCC"); Briarpatch Film Corp.
("BFC"), Briarpatch Theatre Corp. ("BTC"), Briarpatch Releasing
Corp. ("BRC"), and Sansho Company, Inc. ("Sansho").
Rubin is the sole limited and winding up partner of Briarpatch
Limited. He is a New York resident, as are Geisler and
Myers is a former attorney of and an associate of Geisler and
Brick is an independent film producer whose services Geisler
and Roberdeau sought prior to 1999 as line producer for a
project known as "The White Hotel."
Goldin is counsel to Briarpatch Limited and Rubin.
Pate, a Texas resident and citizen, was an investor who
initiated a claim of fraud against Geisler and Roberdeau.
Morris "Mike" Medavoy ("Medavoy") is the founder and chairman
of Phoenix Pictures, Inc. ("Phoenix"), and resides in
Terence Malick ("Malick") is a writer and director. His films
include "The Thin Red Line," "Badlands," and "Days of Heaven."
Background and Prior Proceedings
Creativity in the film industry is matched by the creativity
of counsel to those who seek, to obtain properties and create
deals. Although the aforementioned parties have managed to
create a flood of litigation in this and other jurisdictions,
the actions presently before this Court can be characterized as
(1) Civil Action 99 Civ. 9623 (the "Phoenix Action"),
initiated by Briarpatch Limited and Rubin, alleges that Rubin
made various investments in several projects, including "The
Thin Red Line," "The English Speaker," "Sansho the Bailiff," and
"The White Hotel," and that Medavoy and Malick committed various
wrongdoings with Geisler and Roberdeau in connection with the
development of those projects to the injury of Rubin and
Briarpatch Limited. Malick is no longer a party to the action
pursuant to a stipulation of dismissal dated October 31, 2001,
and Geisler Roberdeau, Inc. was dismissed from the action
pursuant to this Court's opinion dated March 1, 2001,
Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., No. 99 Civ.
9623(RWS), 2000 WL 235284 (S.D.N.Y March 1, 2000).
(2) Civil Action 01 Civ. 4767 (the "Properties Action")
involves a settlement mad, among Briarpatch Limited, Rubin, and
Pate. It is alleged by Geisler, Roberdeau BFC, and BTC that
their employment and literary rights, and their copyrights, in
the properties "The English Speaker" and "Sansho the ...