The opinion of the court was delivered by: Robert W. Sweet, District Judge
The plaintiffs Night Hawk Limited ("Night Hawk") and D.M. Thomas ("Thomas") (collectively, the "Plaintiffs") have moved for a preliminary injunction under Rule 56, Fed.R.Civ.P., to bar the defendants Briarpatch Limited L.P. ("Briarpatch") and Gerard F. Rubin ("Rubin") (collectively, the "Defendants") and various Jane and John Does from asserting any claims with respect to the possession of any rights to The White Hotel and J.M. Barrie & The Lost Boys (the "Properties"). The Defendants have moved for summary and declaratory judgment under Rule 56, Fed.R.Civ.P. with respect to the Properties, and to dismiss, consolidate, remand or abstain from this action under Rules 8, 12, 13, 42, and 56 of Fed.R.Civ.P. and 28 U.S.C. § 1746.
For the reasons set forth below, the action will be stayed pending discovery and resolution of the jurisdictional issues presented.
This action was commenced on February 28, 2003, alleging diversity and federal question jurisdiction. It is the mirror image of Briarpatch Ltd. v. D.M. Thomas, et al, 02 Civ. 10097, remanded this date to the Supreme Court of the State of New York, County of New York (the "State Court").
The complaint and the motions involve the ownership of the underlying copyrights to The White Hotel by D.M. Thomas and J.M. Barrie and the Lost Boys by Andrew Birkin (the "Properties").The Plaintiffs seek a declaration that the only owner of the copyright to The White Hotel is Thomas and his current licensee, Night Hawk, and that the only owner of the copyright to J.M. Barrie and the Lost Boys is The Great Ormond Street Hospital for Sick Children and its licensee, Andrew Birkin, the biography's author, and that the rights previously granted by Thomas to The White Hotel in 1986 to Geisler/Roberdeau were assigned to Monty Montgomery, from him for valid consideration in 1994 by Samuel Myers' group, and were now owned by Geisler/Roberdeau or any affiliate in October 1999 when the State Court judgment against Geisler/Roberdeau was entered.
The Plaintiffs seek also to prohibit Defendants from interfering with production and screenwriting contracts.
All the motions were garnered, heard on the papers, and marked fully submitted on April 2, 2003.
This action is the latest of at least eleven (and possibly more) actions or proceedings which evolve from an investment made by Rubin in Briarpatch, an entity created by Robert Geisler ("Geisler") and John Roberdeau ("Roberdeau") who, according to Rubin, swindled him, Briarpatch, and its affiliated enterprises. The instant litigation against Geisler and Roberdeau in the State Court was resolved by a judgment in Rubin's favor, and the remainder of the litigation is the effluvia of that judgment, exacerbated by the ill will of the parties and excessive and occasionally misguided zeal of their lawyers.
Fortunately for the purposes of the disposition of the pending motions it is not necessary to descend into the briarpatch of the parties' underlying contentions and to parse the rights of what could be valuable properties if the litigation could ever be finally resolved.
The Defendants have submitted affidavits alleging that Night Hawk is the alter ego of Geisler and has its principal place of business in New York, thereby destroying diversity jurisdiction and that there is no federal question jurisdiction based upon copyright. The second contention has been resolved in related litigation and the status of Night Hawk is a ...