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Shangold v. Walt Disney Company

January 12, 2006


The opinion of the court was delivered by: William H. Pauley III, District Judge


Defendants move to dismiss this action on the grounds that Plaintiffs fabricated evidence and perpetrated a fraud on this Court. The motion implicates the inherent authority of a court to safeguard the integrity of the judicial process and effect the orderly administration of justice. For the reasons set forth below, Plaintiffs' misconduct requires that the policy favoring adjudication on the merits yield to the need to preserve the integrity of the courts.


Plaintiffs Judith Shangold and Ronnie Niederman are the authors of a series of treatments written for a children's animated theatrical feature titled Starmond the Wizard and Starmond (collectively, "Starmond").*fn1 In 1989, they wrote the first treatment of the series ("T1"). (Complaint, dated Nov. 25, 2003 ("Compl.") ¶ 24; Affidavit of Joanna R. Swomley, dated June 1, 2005 ("Swomley Aff.") Ex. 2: T1; Swomley Aff. Ex. 27: Starmond Timeline; Swomley Aff. Ex. 35: Revised Starmond Timeline.) T1 was submitted to Disney and on May 25, 1994, rejected as "an unexciting, confusing and mostly listless fairy tale . . . that does little to merit further consideration." *fn2 (Swomley Aff. Ex. 3: Coverage, dated May 25, 1994.)

In April or May of 1995, Plaintiffs allege they revised T1 to add a baseball storyline in five pages of handwritten notes ("T1a"). (Deposition of Judith G. Shangold, dated Nov. 29, 2004 ("Shangold Dep.") at 22-24; Compl. ¶ 29; Swomley Aff. Ex. 35.) Plaintiffs maintain that they submitted T1a along with T1 to Disney on June 16, 1995. (Compl. ¶¶ 31-35; Shangold Dep. at 22-24, 63, 72, 242-43; Deposition of Ronnie Niederman, dated Nov. 30, 2004 ("Niederman Dep.") at 41, 134; Swomley Aff. Ex. 5: Letter from Shangold to David E. Vogel, dated June 16, 1995.)

T1a is replete with the term "Palm Pilot," referring to a handheld computer that functions as a personal organizer with wireless capability. (Swomley Aff. Ex. 29: T1a.) However, handheld devices with that name did not exist at the time Plaintiffs claim they created T1a. Prior to November 1995, the handheld organizer to which Plaintiffs refer was known internally at Palm Computing, Inc. ("Palm") as the "Taxi." (Deposition of Robert Haitani, dated Jan. 18, 2005 ("Haitani Dep.") at 16; Declaration of Robert Haitani, dated June 28, 2005 ("Haitani Decl.") ¶ 6; Andrea Butter & David Pogue, Piloting Palm: The Inside Story of Palm, Handspring, and the Birth of the Billion-Dollar Handheld Industry (2002) ("Piloting Palm") 128.) It was not until November 1995 -- approximately five months after Plaintiffs allegedly submitted T1a to Disney -- that Palm learned from a trademark registration search that it could not use the name "Taxi" and renamed the product the "Pilot." (Haitani Dep. at 16; Haitani Decl. ¶ 6; Piloting Palm 128.) Indeed, the Pilot was not unveiled to the public until January 1996 and did not become available for shipment to customers until April 9, 1996. (Haitani Dep. at 16-18; Haitani Decl. ¶¶ 7-8; Piloting Palm 135-38, 150.) Further, Palm only coined the term "PalmPilot" in March 1997 with its second generation of the device and the wireless capability Plaintiffs reference in T1a was not available until May 1999. (Swomley Aff. Ex. 37: palmOne, Inc. Historical Timeline.)

Moreover, Shangold did not mention T1a, baseball or a "Palm Pilot" in her June 16 cover letter to Disney, nor did Plaintiffs in the requisite Disney submission agreement that they completed. (Swomley Aff. Ex. 5.) On June 29, 1995, Disney returned "Starmond the Wizard" (T1) to Plaintiffs' then attorneys. (Swomley Aff. Ex. 9: Letter from Allison Brecker to Elizabeth Corradino, Esq., dated June 29, 1995.) The records of Plaintiffs' former counsel contained only Disney's letter and T1, not T1a or any story about baseball. (Swomley Aff. ¶ 11.)

In 1997, Plaintiffs revised T1, but did not include a baseball theme ("T2"). (Compl. ¶ 35; Swomley Aff. Ex. 13: T2.) Four years later, Plaintiffs' agent, the Claudia Menza Literary Agency ("CMLA"), submitted T2 to Disney. (Compl. ¶ 43; Swomley Aff. Ex. 11: Letter from CMLA to Disney, dated Apr. 24, 2001.) Once again, Disney rejected T2, concluding that it "ultimately falls short in terms of its story." (Swomley Aff. Ex. 12: Coverage, dated May 14, 2001.)

In July 2001, Plaintiffs created another Starmond treatment ("T3") that purportedly incorporated T1a's baseball storyline. (Compl. ¶ 47; Swomley Aff. Ex. 35.) CMLA sent T3 to Disney on August 6, 2001. (Compl. ¶ 48; Swomley Aff. Ex. 27; Swomley Aff. Ex. 35.) On September 15, 2001, Disney rejected T3, commenting that it was "a submission of remarkable incomprehensibility." (Swomley Aff. Ex. 14: Disney Coverage, dated Sept. 15, 2001.)

In 2002, Disney's Miramax Books subsidiary published Summerland, a novel by Pulitzer Prize-winning author Michael Chabon ("Chabon"). Chabon began writing what would eventually evolve into Summerland in 1989 and first developed a baseball theme for the novel in 1999. (Deposition of Michael Chabon, dated Jan. 4, 2005 ("Chabon Dep.") at 76-77.) On January 10, 2001, Miramax Books acquired the rights to Summerland from Chabon. (Swomley Aff. Ex. 20: Letter from Devereux Chatillon to Martin Garbus, Esq., dated Mar. 6, 2003.)

In the autumn of 2002, Chabon appeared on NBC's Today show to publicize his novel. By happenstance, both Shangold and Niederman watched Chabon's Today show interview and concluded that his novel Summerland mirrored their Starmond storyline. (Compl. ¶¶ 54-57; Shangold Dep. at 185-86.) Plaintiffs contacted Menza to convey their concerns and then annotated a copy of Summerland to identify perceived similarities with Starmond. (Shangold Dep. at 186.) Plaintiffs and Menza also created a timeline of Starmond's development and their dealings with Disney that referred to T1, T2 and T3, but not T1a. (Swomley Aff. Ex. 27; Deposition of Claudia Menza, dated Dec. 7, 2004 ("Menza Dep.") at 167.)

In January 2003, Plaintiffs and Menza, through their attorneys, contacted Miramax Books asserting that Chabon used T3 in creating Summerland. (Swomley Aff. Ex. 28: Letter from Chatillon to Garbus, dated Jan. 30, 2003; Swomley Aff. Ex. 22: Facsimile from Menza to Garbus, dated Jan. 28, 2003.) Miramax Books rejected their claim, explaining that Plaintiffs' own timeline indicated that T2 and T3 were delivered to Disney after Miramax Books acquired the rights to Summerland. (Swomley Aff. Ex. 28; see also Swomley Aff. Ex. 27.)

That revelation placed particular importance on when Plaintiffs first conceived a baseball theme for Starmond. Menza informed Plaintiffs' attorneys that Plaintiffs first developed the baseball storyline in 1995 with T1a. (Menza Dep. 171-73, 248.) Menza and Plaintiffs then revised their timeline to reflect the purported creation of T1a in 1995 and forwarded the new timeline to Disney. (Menza Dep. at 169, 171-72, 251-52; Swomley Aff. Ex. 35; Swomley Aff. Exs. 31-32: Letters from Garbus to Chatillon.) Plaintiffs also drafted several plot outlines comparing the Starmond treatments to Summerland, some of which referred to T1a while others did not. (Swomley Aff. Exs. 24-26, 33-34: Plot Outlines.) Certain of those outlines were furnished to Disney. (Swomley Aff. Ex. 20.) By letter dated March 6, 2003, Miramax Books reiterated its position of noninfringement:

As I told you, Summerland came to Miramax Books in a fairly unique way, Michael Chabon's agent, Mary Evans sent around a detailed outline and sample chapters . . . to several publishers as the basis of a book auction in January 2001. No publisher, including us, gave Michael any material, ideas, or anything else concerning the Summerland book proposal -- it all came from Chabon and was a project that Chabon had been working on for several years. While Miramax was not originally among the publishers included in the auction, Miramax Books' President, ...

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