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Pearce v. Manhattan Ensemble Theater

September 30, 2009

ANNA PEARCE, PROFESSIONALLY KNOWN AS PATTY DUKE PLAINTIFF,
v.
MANHATTAN ENSEMBLE THEATER, INC., GOLDA TOUR I, L.P., DAVID FISHELSON, AND FISCHELSON PRODUCTIONS, DEFENDANTS.



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

OPINION & ORDER

On February 24, 2006, Plaintiff Anna Pearce ("Plaintiff") brought this action against Defendants, a theater producer and three theater production companies, alleging seven state law causes of action. In 2006, the Court dismissed all of Plaintiff's claims except her claims for breach of contract, promissory estoppel, and invasion of privacy.

Plaintiff alleges: (1) that she had an oral contract with Defendants to star in Defendants' production of the play Golda's Balcony, which Defendants breached by firing her (a claim for breach of contract); (2) that Defendants promised to engage Plaintiff to star in the production and that Plaintiff detrimentally relied on that promise (a claim for promissory estoppel); and (3) that Defendants used Plaintiff's name and image in materials promoting the production without her consent (a claim for invasion of privacy). Defendants move for summary judgment on these claims.

For the reasons stated below, the Court DENIES Defendants' motion for summary judgment on Plaintiff's breach of contract and promissory estoppel claims. The Court GRANTS Defendants' motion for summary judgment on Plaintiff's invasion of privacy claim.

I. Background

Unless otherwise noted, the following facts are undisputed and are derived from parties' Local Rule 56.1 statements, affidavits, and other submissions. The Court construes all evidence in the light most favorable to the Plaintiff and draws all reasonable inferences in the Plaintiff's favor.

A. The Parties

1. Plaintiff

Plaintiff Anna Pearce is an actress known professionally as Patty Duke. Plaintiff claims that Defendants hired her to star in a national tour of the play Golda's Balcony (the "Tour").

2. Defendants

Defendant David Fischelson ("Producer") is a theater producer. Producer staged Golda's Balcony on Broadway, and then produced the Tour.

Defendants Fischelson Productions, Inc., Manhattan Ensemble Theater, Inc., and Golda Tour I, L.P. are companies operated by Producer and associated with the Tour.

3. Additional Relevant Parties

Mitchell K. Stubbs ("Agent") is Plaintiff's agent. He represented Plaintiff in negotiations with Defendants over Plaintiff's role in the Tour.

Bernard Tansey ("Manager") was general manager of the Tour. Manager was involved in negotiations with Agent over Plaintiff's role in the Tour.

Meredith Blair ("Booking Agent") was responsible for booking theaters for the Tour.

Laura Matalon ("Marketing Agent") was responsible for preparing promotional materials and marketing the Tour.

B. Facts

Golda's Balcony is a one-actor play about Golda Meir, the fourth Prime Minister of Israel. Producer staged Golda's Balcony on Broadway, and then began planning the Tour. (Def's 56.1 Stat. ¶¶ 6-7.) In October 2004, Producer approached Agent about engaging Plaintiff to star as Golda Meir in the Tour. (Def's 56.1 Stat. ¶ 12.)

2. The December 24, 2004 Deal Memo

On December 23, 2004, Agent, Producer, and Manager discussed possible terms for Plaintiff's engagement with the Tour. (Def's 56.1 Stat. ¶ 24.) On December 24, 2004, Manager sent Agent a memorandum (the "Deal Memo") summarizing the parties' discussions to that date. (Def's 56.1 Stat. ¶ 25; Neier Decl. Exs. 16, 17.) The Deal Memo stated that Plaintiff would be signed to an Equity Production Contract, which is a standard contract required by the Actor's Equity Association, an actors' union. The Deal Memo concluded with the line "I look forward . . . to moving this to a contract." (Neier Decl. Ex. 17.)

Prior to sending the Deal Memo, Producer and Manager discussed whether they wanted Plaintiff to sign the Deal Memo. Producer expressed a desire to obtain Plaintiff's signature to ensure that Plaintiff was committed to the Tour. (Netburn Decl. Ex. 2.) Manager responded that a signature was "more formal tha[n] is called for," and that "the [M]emo has no real binding force . . . because the union would never back it." (Netburn Decl. Ex. 3.) Manager added that he would "move to contract quickly." (Netburn Decl. Ex. 3.) The Deal Memo did not include a place for Plaintiff's signature. (Neier Decl. Ex. 17.)

Defendants claim that it was clear from the Deal Memo and earlier discussions between the parties, that Plaintiff would not be engaged to star in the Tour until she signed a written contract with Defendants. (Def's 56.1 Stat. ¶¶ 15, 20, 26.) Plaintiff claims that she understood only that Defendants wanted to memorialize the terms of her engagement in a written contract at some point, but not that a written contract was required to bind the parties. (Pl.'s 56.1 Resp. ¶ 20.)

3. The Conference Call to Discuss Plaintiff's Engagement

Following Agent's receipt of the Deal Memo, Agent, Producer, and Manager had a conference call to discuss the terms of Plaintiff's engagement (the "Conference Call"). (Def's 56.1 Stat. ¶ 30; Pl.'s Opp. ¶ 8).*fn1 During the Conference Call, the parties discussed two points regarding Plaintiff's salary. (Def's 56.1 Stat. ¶¶ 30-31.) Plaintiff claims that the parties reached agreement on the salary terms during the Conference Call, and that, at the end of the call, Agent said "Gentlemen, we have a deal. We have an agreement." (Pl.'s Opp. ¶ 8.) In his deposition, Manager denied that Agent made such a statement during the call. (Tansey Dep. 153:2-10.) The parties dispute whether Producer stated during the Conference Call that a signed agreement would be necessary to bind the parties. (Def's 56.1 Stat. ¶ 33; Pl.'s Resp. ¶ 33.)

On December 28, 2004, Producer sent an email to two email addresses belonging to Agent. (Def's 56.1 Stat. ¶ 34.) The email stated that Producer and Manager would send Agent an email within several days, which would leave the parties "close to on target for a pre-Jan 1 delivery of signature" by Plaintiff. (Neier Decl. Ex. 19.) In his deposition, Agent stated that he never received or read Producer's email. (Pl.'s Resp. ¶ 34.)

4. Plaintiff Begins Preparing for the Tour

The parties did not sign a written contract during the first week of January. (Def's 56.1 Stat. ¶ 36.) Nonetheless, on January 4, 2005, Agent sent an email to his agency stating that he had "closed" on the deal for Plaintiff to star in the Tour. (Pl.'s 56.1 Stat. ¶ 11.) On January 5, 2005, Agent gave Plaintiff's contact information to Producer, and Producer spoke directly with Plaintiff for the first time. (Pl.'s Opp. ¶ 13.) It is generally Plaintiff's policy not to speak to a producer until a final engagement agreement has been reached. (Pl.'s 56.1 Stat. ¶ 12.) In her deposition, Plaintiff stated that when she agreed to speak with Producer, she believed the parties had concluded a final agreement for her to star in the Tour. (Pearce Depo. 248:18-250:2.)

Following her conversation with Producer, Plaintiff began memorizing her lines and gathering research materials for the role. (Pl.'s Resp. ¶ 15.) Agent provided Producer with photographs of Plaintiff for use in promotional materials.

(Pl.'s 56.1 Stat. ¶ 16, 19.) Producer and Marketing Agent developed logos and subscription copy for the Tour, which contained the line "Golda's Balcony, starring Patty Duke." (Pl.'s 56.1 Stat. ¶¶ 19-21.) Beginning on January 24, 2005, Booking Agent sent materials to theaters that would be staging the Tour, which stated "Golda's Balcony, starring Patty Duke." (Pl.'s 56.1 Stat. ¶ 22.) On January 26, 2005, Producer sent Plaintiff a draft press release for the Tour, which stated "Patty Duke to star in Golda's Balcony." (Netburn Decl. Ex. 77.)

In February 2005, Producer and Plaintiff discussed scheduling costume fittings and photography and commercial ...


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