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September 14, 2005.


The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


Plaintiff Marie Flaherty ("Plaintiff" or "Flaherty"), appearing pro se, brings this action alleging that Defendants Jason Filardi ("Filardi"), George N. Tobia, Jr., Esq. ("Tobia"), Burns and Levinson, LLP ("B&L"), Hyde Park Entertainment ("Hyde Park"), Ashok Amritraj ("Amritraj"), David Hoberman ("Hoberman"), Todd Lieberman ("Lieberman"), the Walt Disney Company ("Disney"), Buena Vista Motion Pictures Group ("Buena Vista"), Touchstone Pictures ("Touchstone"), Bungalow 78 Productions ("Bungalow 78"), the Kushner-Locke Company ("Kushner-Locke"), Meespierson Film CV ("Meespierson"), WMG Film ("WMG"), Jane Bartelme ("Bartelme"), Cookie Carosella ("Carosella"), Dana Owens d/b/a Queen Latifah ("Owens"), and Defendants sued as Does 1 through 10 (collectively, "Defendants") infringed the copyright on her screenplay, "Amoral Dilemma," in creating the movie "Bringing Down the House," in violation of 17 U.S.C. § 101 et seq. Defendants Disney, Buena Vista, Touchstone, Hyde Park, Filardi, and Owens ("the Disney Defendants") move, pursuant to Federal Rule of Civil Procedure 56, for partial summary judgment on Plaintiff's copyright claims, Counts One through Four, which assert copyright infringement, contributory copyright infringement, vicarious copyright infringement, and conspiracy to commit copyright infringement, respectively; as well as her related claims under the Lanham Act, 15 U.S.C. §§ 1117, 1125(a) (Count Five); unfair competition under the California Business and Professional Code § 17200 (Count Ten); New York common law unfair competition (Count Eleven), fraud (Count Twelve), unjust enrichment (Count Fourteen), and quantum meruit (Count Fifteen); and Plaintiff's claims for declaratory and injunctive relief (Counts Sixteen and Seventeen of the Complaint, respectively). Defendants Tobia, B&L, Amritraj, Hoberman, and Lieberman move for partial summary judgment on the same grounds. The Disney Defendants, together with Defendants Tobia, B&L, Amritraj, Hoberman and Lieberman, are hereinafter referred to as the "Moving Defendants." The motion papers filed by Tobia and B&L incorporate by reference the legal arguments made in the Disney Defendants' brief.*fn1 Amritraj, Hoberman and Lieberman also filed motion papers incorporating the Disney Defendants' argument, together with an application for a stay of their obligation to answer the First Amended Complaint pending adjudication of the summary judgment motion practice. Plaintiff has cross-moved to compel Amritraj, Hoberman, and Lieberman to file an answer, as well as for attorneys' fees relating to the motion practice.

  Also before the Court are Plaintiff's application pursuant to Rule 56(f) for a continuance to allow for discovery, Plaintiff's objections to a September 24, 2003, order of Magistrate Judge Henry B. Pitman, staying discovery pending resolution of the instant summary judgment motion, and Plaintiff's objections to Judge Pitman's June 29, 2004, order, denying Plaintiff's motion for an evidentiary hearing and disqualification of Disney's counsel from representing Defendant Filardi, and for attorney's fees. Plaintiff also moves to strike a declaration in support of Defendants' motion for partial summary judgment by Defendants' counsel Jeffrey A. Conciatori, and a February 6, 2004, letter from Conciatori in support of the motion.

  The Court has subject matter jurisdiction of Plaintiff's copyright and Lanham Act claims pursuant to 28 U.S.C. sections 1331, 1338(a), and 1338(b), and of the various state law claims pursuant to 28 U.S.C. section 1367.

  The Court has considered carefully all of the submissions made in connection with these motions. For the reasons that follow, Defendants Amritraj, Hoberman and Lieberman's application for a stay of their obligation to answer the First Amended Complaint pending adjudication of the summary judgment motion practice is granted; Plaintiff's cross-motion to compel them to file an immediate answer is denied; Plaintiff and those Defendants are directed to make further submissions in connection with Plaintiff's application pursuant to Fed.R.Civ.P. 4(d)(5); Plaintiff's request to modify or set aside Magistrate Judge Pitman's September 24, 2003 order is denied; Plaintiff's request to vacate Magistrate Judge Pitman's June 29, 2004 order is denied; both of Plaintiff's motions to strike are denied; and Plaintiff's Rule 56(f) application is denied. Defendants' respective motions for partial summary judgment are granted in part and denied in part.



  The instant partial summary judgment motion practice is narrowly focused on Plaintiff's claims premised on alleged similarities between her screenplay and the finished film "Bringing Down the House." For purposes of the motion practice, the Moving Defendants concede access to Plaintiff's screenplay and do not contest her ownership of a valid copyright in that screenplay. The following background facts (other than those specifically characterized below as allegations) appear to be undisputed for purposes of this motion practice. A. Parties

  Plaintiff Marie Flaherty ("Flaherty"), is an actor, writer, lawyer and author of the screenplay "Amoral Dilemma." (Compl. ¶ 4.)*fn2 Defendant Filardi is the screenwriter of the screenplay "," which was later renamed "Bringing Down the House." (Id. ¶ 21.) Defendant Tobia is a member of the law firm Burns and Levinson, LLP. Plaintiff alleges that Tobia represented both Filardi and herself at relevant times. (Id. ¶ 22.) Defendants Hyde Park, Amritraj, Hoberman, Lieberman, Disney, Buena Vista, Touchstone, Bungalow 78, Kushner-Locke, Meespierson, WMG, Bartelme, Carosella, and Owens are all producers and/or distributors of the movie "Bringing Down the House." (Id. ¶¶ 24-38.)

  After completing her screenplay "Amoral Dilemma," Plaintiff registered her work with the Writers Guild of America on June 25, 1999 (registration no. 127978-00), and with the United States Copyright Office on April 19, 2000 (registration no. PA-014-229). (Id. ¶¶ 44-45.) Plaintiff alleges that, in or about August 1999, she contacted Defendant Tobia in order to seek representation to "shop" her screenplay in the hopes of selling it. (Id. ¶¶ 47-48.) After a telephone discussion with Defendant Tobia in which Plaintiff summarized (or "pitched") "Amoral Dilemma," Defendant Tobia allegedly agreed to represent Plaintiff and, during a follow-up personal meeting, Plaintiff provided Defendant Tobia with a copy of her screenplay. (Id. ¶¶ 48-50.) Plaintiff alleges that, during these conversations, Defendant Tobia informed Plaintiff that he was, at that time, also representing Defendant Filardi, who was then working on a screenplay entitled "Himbos," a story about two men who move to Miami to become "male bimbos." (Id. ¶ 48.)

  Plaintiff further alleges that Defendant Tobia contacted her in March 2000 to report that he had sold a script written by Defendant Filardi, entitled "," which Tobia explained was a comedy about "a guy who meets a female prisoner on-line." (Id. ¶ 63.) Plaintiff alleges that Defendant Tobia had provided Defendant Filardi with a copy of her screenplay for "Amoral Dilemma" and that Defendant Filardi essentially plagiarized her ideas, thereby violating her copyright on the work.

  As noted above, the Moving Defendants concede, for purposes of the instant summary judgment motion, that they had access to Plaintiff's screenplay. They argue that Defendant Filardi did not improperly use Plaintiff's ideas and deny that "Bringing Down the House" bears sufficiently substantial similarity to "Amoral Dilemma" to be violative of Plaintiff's copyright. (Defendants' Rule 56.1 Statement ("DR 56.1") ¶ 7.)

  In support of their summary judgment motion, the Moving Defendants have submitted Plaintiff's screenplay for "Amoral Dilemma" (Decl. of Jeffrey A. Conciatori, Ex. A). Plaintiff acknowledges that the document before the Court is a true and correct copy of her screenplay. (Plaintiff's Rule 56.1 Statement ("PR 56.1") ¶ 1.) The Moving Defendants have also proffered a copy of the movie, "Bringing Down the House," as released on videotape. (Conciatori Decl., Ex. B.) The Court has reviewed both Plaintiff's screenplay and Defendants' movie in connection with the summary judgment motion. Their respective material elements are summarized below. B. The Allegedly Similar Works

  1. "Amoral Dilemma"

  "Amoral Dilemma" opens by introducing Kelly Gallagher, a young Manhattan insurance attorney who is dissatisfied with her work and the direction of her life. She has just left her boyfriend, Dave, who is a senior attorney in her office, after discovering that he had an affair with the younger mail room clerk, Jane. Although she is unhappy with her job, she has excelled at work, and in the beginning of the story, she has just saved her client from an insurance liability claim in connection with an eight year-old boy's death.

  Kelly's meets her best friend, Nancy, who is also unhappy with her life, at a bar, and the two women decide that they should begin corresponding with a death row prisoner and use him as a means of seeking revenge on men. Kelly uses a legal search website to locate Jake Mannion, a prisoner on death row at a Pennsylvania state prison who was convicted for the rape and murder of a young woman. Kelly and Nancy create a phony identity and send a letter to Jake in furtherance of their scheme.

  At work, Kelly is assigned to defend another case, this one involving an automobile accident where two teenage girls were killed while driving to school. Kelly's former boyfriend, Dave, is also assigned to the case, increasing the tension between the two characters. Meanwhile, Kelly and Nancy continue to correspond with Jake using their phony identity, and Nancy, unbeknownst to Kelly, becomes obsessed with Jake, writing him several additional letters without Kelly's knowledge. After discovering that Jake wrote to the governor requesting clemency, Kelly also becomes increasingly interested in Jake, and begins research to determine whether he might be innocent of the crimes for which he was convicted. As the story continues, Kelly wins another case for her insurance client when she discovers evidence in the car accident case that compels the teenage girls' families to withdraw their insurance claims but, despite her success, she continues to be dissatisfied with her job. One day shortly thereafter, while at work, Kelly sees an unfamiliar man leaving the office with the mail room clerk, Jane (with whom Dave was having an affair). The next evening, Dave and Kelly are working late in the office when a man comes in and attacks them, stabbing Dave. Kelly believes that she was the intended target because of her investigation into Jake's case. Kelly also realizes that Jane did not come to work that day, and thinks that the man who stabbed Dave may be the same man with whom Jane left the office the day before; Kelly therefore decides that she and Nancy must go to Jane's apartment. When they get to Jane's apartment, they find that she has been murdered.

  Kelly and Nancy then travel to Pennsylvania to further investigate the Jake Mannion case. Kelly meets with the district attorney and the assistant district attorney, and ultimately discovers DNA evidence which confirms Jake's innocence and leads the governor to grant a pardon for Jake. Meanwhile, Nancy goes to the prison to meet with Jake and gives him her contact information, which ends up in the hands of Gary Satchel, a fellow prisoner who frequently bullies Jake. Back in Manhattan, the police apprehend the brother of one of the teenage girls killed in the car accident as a suspect in the attacks on Kelly, Dave and Jane. Realizing that the attacks were work-related, Kelly becomes even more distraught about her job and decides to quit.

  In the final scenes of the screenplay, the prison and the district attorney's office turn out to be corrupt. Gary Satchel is released from prison instead of Jake Mannion, when the prison officials intentionally switch the men's identities. Jake is executed. A tattoo on the assistant district attorney's knuckles reveals that he is actually one of the men responsible for the Pennsylvania rape and murder, and Gary Satchel, having stolen Nancy's contact information from Jake, goes to her home, apparently intending to murder her.

  2. "Bringing Down the House"

  "Bringing Down the House" begins with an on-line chat between Peter Sanderson, a divorced, middle-aged, white, tax attorney, and a woman named Charlene, who uses the pseudonym "Lawyergirl." Peter believes that Charlene is a white attorney based on a picture she provided and tells certain white lies about his appearance to make himself sound more attractive. Although he has no experience in the criminal law field, Peter provides advice to "Lawyergirl" regarding one of her clients. Peter and "Lawyergirl" then decide to meet at his home for a first date.

  In the office, Peter is competing with a younger colleague to secure a new client, Mrs. Arness, an elderly heiress of a billion dollar company, and decides to forego vacation plans with his children so that he will be available to work on the Arness matter. Peter's attempts to secure Mrs. Arness's business are made more difficult by her demanding personality and the absurdity of having to deal with her prized French bulldog, "William Shakespeare," who appears in costume and goes everywhere with her.

  When "Lawyergirl" appears at Peter's home for their date, he is surprised to discover that she looks nothing like her picture and, rather than being a white attorney, is in fact a black ex-convict named Charlene who just escaped from prison. Although Peter makes several attempts to throw Charlene out, she persuades him to let her stay while she works on the appeal of her conviction for armed robbery. Concerned that his law firm colleagues and his nosy and overtly racist neighbor might not approve of Charlene, Peter creates a number of schemes to hide her identity, including introducing her as his children's nanny. Meanwhile, upon meeting Charlene, Peter's best friend and co-worker, Howie, is smitten with her and tries to charm her with his knowledge of "urban slang." Throughout the course of the movie, despite various awkward situations that Charlene's presence creates for Peter, he becomes less uptight and also grows closer to his children.

  The movie builds towards its climax as Mrs. Arness discovers, while having dinner at Peter's home, that Charlene is not the children's nanny but rather an escaped convict. Mrs. Arness refuses to hire Peter, and Peter kicks Charlene out of his house. Peter then learns that Charlene was framed for her crime by her ex-boyfriend and goes to an urban nightclub in an attempt to locate the former boyfriend and obtain a taped confession that will exonerate Charlene. Meanwhile, Howie and Charlene have kidnapped Mrs. Arness and her dog and, fearing for Peter's safety, end up going to the nightclub to track Peter down.

  After a series of antics, including donning urban-style clothing to try to blend in at the nightclub, Peter is able to locate Charlene's ex-boyfriend and secures a confession from him confirming that he framed Charlene. As Peter's scheme unravels, however, a fight breaks out at the nightclub during which Charlene, who has arrived with Howie and Mrs. Arness, is shot in the chest but is not seriously injured because the bullet hit Peter's cell phone, which she had tucked into her cleavage. As the movie comes to a close, Charlene is formally exonerated, Mrs. Arness changes her mind about Peter and hires him as her attorney, Charlene and Howie begin dating, and Peter quits his law firm job to open his own practice overlooking the beach. Peter realizes the importance of family and reconciles with his ex-wife after he confesses that he has been in love with her all the while.



  The Court will discuss the pending procedural applications, including Plaintiff's objections to Magistrate Judge Pitman's orders, before turning to the motions for partial summary judgment.

  A. Application of Defendants Amritraj, Hoberman, and Lieberman for Stay of Obligation to Answer

  Defendants Amritraj, Hoberman, and Lieberman, all producers of "Bringing Down the House," move for a stay of their obligation to answer the First Amended Complaint pending adjudication of the pending partial summary judgment motion practice. Plaintiff opposes their motion, arguing, essentially, that she has been prejudiced by these Defendants' failure to file an answer in advance of moving for summary judgment. Plaintiff also cross-moves for an order requiring Defendants Amritraj, Hoberman, and ...

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