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STREIT v. BUSHNELL
424 F.Supp.2d 633 (2006)
United States District Court, S.D. New York.
March 23, 2006.
The copyright infringement claim Streit asserts relates to a different literary work. Streit recites that in 1997 he wrote an original fictional movie script (the "Script") entitled "Fashion Victims," to which he held the exclusive copyright from its inception. In it Streit created two fictional characters named "Sebastian Wanus" and "Patrique." In 1998, at Bushnell's request, Streit delivered a copy of the Script to her for comments. By Streit's account, Bushnell read the Script and called Streit to relate that she had "`loved' it." (Id. ¶ 32.) Streit alleges that after reading the Script, Bushnell wrote and published a book entitled Four Blondes which, without Streit's consent, copied creative material derived from the Script and thus infringed on Streit's copyright. Streit asserts that he became the exclusive owner of a registered copyright in the Script on May 24, 2005, when he obtained a Certificate of Registration from the Register of Copyrights. In connection with the alleged infringement, Streit claims actual or statutory damages, as well as attorneys fees and costs. As is to be expected, Bushnell presents a diametric version of the events. In her account, Bushnell portrays herself as "a well-known author and celebrity" who gained "a fair degree of notoriety" by virtue of her popular column in a New York weekly newspaper that was later turned into a best selling book, Sex and the City. (Mem. of Law in Supp. of Def. Candace Bushnell's Mot. to Dismiss ("Def.'s Mem."), dated November 21, 2005, at 1.) Bushnell says she and Streit met "socially" in the early 1990s and they "became friends." (Id.) Six years after the start of the successful television series based on her book, Bushnell relates, Streit "came out of the woodwork" (id. at 2) claiming breach of an alleged oral agreement between the parties and, "[e]ver the opportunist," commenced this litigation "in an apparent attempt to injure [] Bushnell's reputation" prior to the release of her latest book (id. at 3). Charging that Streit "will say absolutely anything to keep his case alive," to that end "shamelessly and without regard to the truth" changing his story when deficiencies in his Original Complaint were pointed out, Bushnell reminds the Court that "[t]his Court is not [] Streit's playground and this lawsuit is not a game," and suggests that "Streit's conduct should be rebuked by this Court." (Reply Mem. of Law in Supp. of Def. Candace Bushnell's Mot. to Dismiss ("Def.'s Reply Mem."), dated December 23, 2005, at 1.) Hardly disguising her chagrin and impatience about the prospect of defending what she regards as "extremely serious" but nonetheless "frivolous" charges (id.), Bushnell seeks a speedy resolution of this litigation. To that end, soon after the action was commenced, in lieu of an answer Bushnell filed a first Rule 12(b)(6) motion to dismiss the complaint. Shortly thereafter, even prior to the initial conference with the Court and any exchange of initial discovery, she sought to file a motion for summary judgment to dispose of Streit's copyright claim. The instant motion promptly followed Streit's filing of the First Amended Complaint. The manner and approach by which Bushnell has responded to this action prompts the Court to offer a preliminary observation as a decisional guide, for whatever small comfort or instructional value it may contain. As is the case of most defendants, Bushnell's cause for concern and frustration associated with defending
a lawsuit is understandable. Litigation, even when it may be meritless, certainly takes the large toll parties must pay in personal resources and professional reputation, costs that, as Bushnell points out, are often hard to live down. To be sure, this form and forum of combat does open the potential for opportunism and other kinds of abuse of process, and hence the undercurrent that runs with some frequency through the protestations of renowned defendants like Bushnell who are brought into the public arena to answer charges of wrongful conduct. At bottom, what their remonstrances suggest is that there are aspects of our adversarial scheme of justice that serve as sporting grounds for the legal system's version of paparazzi, those litigants and lawyers whose chosen survival niche in life, for reasons and returns not too hard to fathom, is to stalk and hound and vex the rich and famous, hauling them into court on grounds at times propped by only faint claim of right or cause. That persons of mark and means would be eager to be rescued from the indignity of defending themselves against allegations they consider baseless and inspired by opportunism, is not unreasonable. But, regrettably from the perspective of the celebrities who feel aggrieved by the attendant trials and tribulations, there is no silver bullet (or fly swatter) readily available to a judge to quickly dispatch the pesky claimants and litigation tactics these defendants decry. Devoutly as Bushnell might wish it to be so, except in very rare cases, Rule 12(b)(6) is not the potent source for the instant relief she seeks. At this early stage of litigation, weighed as it is in favor of the complainant, and impeded by an absence of a properly balanced and reliable evidentiary record, Bushnell's hurry to dispose of this dispute runs counter to another vital principle of public policy that is embodied in our justice system and entrusted to the courts: insuring fairly to every litigant the right to his day in court. Accordingly, it is not the role of the Court at this point to choose summarily who is right or wrong, to sift through a meager record and decide which litigant is acting in good or bad faith, or which claims or defenses are meritorious and worthy of final judgment. In sum, the Rules provide no agile means enabling the Court to make the value judgments, credibility determinations and resolutions of factual disputes that Bushnell's instant motion implicitly demand.2 II. STANDARD OF REVIEWDismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Harris v. City of New York,186 F.3d 243, 247 (2d Cir.1999). In making this determination, a court must accept all well-pleaded factual assertions in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Jaghory v. New York State Dep't of Educ.,131 F.3d 326, 329 (2d Cir.1997). To inform its ruling in this
regard, a court may review documents integral to the complaint upon which the plaintiff relied in drafting the pleadings, as well as "any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Rothman v. Gregor,220 F.3d 81, 88 (2d Cir.2000) (citing Cosmas v. Hassett,886 F.2d 8, 13 (2d Cir.1989)); see also Schnall v. Marine Midland Bank,225 F.3d 263, 266 (2d Cir.2000).3
1. Pursuant to a stipulation among the parties, Streit withdrew his fraudulent conveyance claim in response to Star's declaration, sufficiently documented, that he is a resident of California, which would have removed the Court's subject matter jurisdiction over the action under diversity of citizenship rules. 2. To cite just one example among many, in her reply papers Bushnell notes that in taking issue with Bushnell's reference to Streit's role as that of a literary agent, Streit "screams" about the alleged mischaracterization. (Def.'s Reply Mem. at 2 n. 2.) Bushnell then asserts that Streit "is completely incorrect," and denies that she ever claimed that Streit was her agent, literary or otherwise. Id. She then declares that Streit "is also incorrect" in stating that Bushnell never disputed that she paid him $10,000 as his percentage fee for placing Sex and the City with HBO. Bushnell's matter-of-fact remarks that Streit is "incorrect" in his account of the events serve only to confirm that these differences manifest quintessential disputes as to issues of material fact that the Court cannot properly adjudicate at this stage of the proceedings. 3. Attached to his response to the motion at hand, Streit includes his own affidavit clarifying or elaborating on several aspects of his pleadings as set forth in the First Amended Complaint. (See Pl.'s Mem. of Law in Opp'n to Def.'s Mot. to Dismiss, dated December 14, 2005.) A complaint cannot be modified by a party's affidavit or by papers filed in response to a dispositive motion to dismiss or for summary judgment. See Wright v. Ernst & Young LLP,152 F.3d 169, 178 (2d Cir.1998). Because Streit's Affidavit was not a document relied upon, attached to or incorporated by reference in the First Amended Complaint, the Court has given no consideration to its content. 4. Bushnell expends considerable energy analyzing differences between the Original and the First Amended Complaint. She points to a number of alleged inconsistencies between them, and urges the Court to disregard changes in factual statements Streit made in the amended pleadings in response to Bushnell's first motion to dismiss. (See Def's Mem. at 3-5 and Def.'s Reply Mem. at 3-5.) The Court declines this invitation, as it runs against the letter and spirit of the flexible pleading standards embodied in Federal Rules of Civil Procedure 8(a) and 8(e) with regard to original complaints and Rule 15 as to amended pleadings.
It is not uncommon for litigants to amend pleadings in response to deficiencies pointed out by an adversary or even by the Court, either before a dispositive motion is filed or in response to a ruling on a motion that grants leave to replead and offers specific guidance as to how any flaws in the pleadings may be cured to survive dismissal. Some such corrective amendments serve a useful purpose in avoiding unnecessary motion practice. Not surprisingly, some later pleadings made in this context necessarily may be at odds with allegations the party asserted in the original pleadings. It would be a harsh rule of law indeed if a litigant were to change a statement in an amended pleading to repair a weakness cited by an adversary or by the Court, only to have the case dismissed because the conforming change in some way may conflict with an allegation in the earlier pleadings. Contrary to such a result, Rule 8(e) explicitly permits litigants, even within the same pleadings, to "state as many separate claims or defenses as the party has regardless of consistency." Fed. R.Civ.P. 8(e) (emphasis added). And Rule 15, after authorizing amendments of pleadings as-of-right within a specified period, provides for amendments with permission of the court and instructs that "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). In support of her request, Bushnell cites Wallace v. New York City Dep't of Corrections, No. 95 Civ. 4404, 1996 WL 586797, at *2 (E.D.N.Y. Oct.9, 1996). There, the court noted that in an amended complaint the plaintiff had "blatantly" changed his statement of the facts in response to the defendants' motion to dismiss and "directly contradict[ed]" allegations set forth in the original complaint. Id. The court accepted the factual account in the original complaint and dismissed the action. This Court finds the circumstances of the instant case distinguishable and thus declines to follow Wallace. The factual change at issue in Wallace was "blatant" and directly contradictory of the earlier allegations because it entailed an essential element of plaintiff's cause of action without which plaintiff could not make out a prima facie case. The Court does not read the modifications of the pleadings at issue here to implicate such dispositive effect. 5. NYGOL § 5-701(a)(10) provides in pertinent part:
a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith . . . if such agreement, promise or undertaking: . . . . 10. Is a contract to pay compensation for services rendered . . . in negotiating the purchase [or] sale . . . of a business opportunity. . . . N.Y. Gen. Oblig. Law § 5-701(a)(10) (McKinney 2006).
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