Free Motion in Limine - District Court of Colorado - Colorado

Case 1:03-cv-01973-PSF-MJW

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EXHIBIT A

EXHIBIT A

Case 1:03-cv-01973-PSF-MJW

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U.S.C. § 1051 et seq., by entitling a motion picture "Return From The River Kwai." Motions, Pleadings and Filings United States District Court, S.D. New York. TRI-STAR PICTURES, INC., Plaintiff, v. LEISURE TIME PRODUCTIONS, B.V., Defendant and Third Party Plaintiff, v. COLUMBIA PICTURES INDUSTRIES, INC., Columbia Pictures Entertainment, Inc., Horizon Pictures G.B., Academy Pictures A.G. and David Bottoms, and Hon. Raya S. Dreben as Executors of the Estate of Samuel Spiegel, Third Party Defendants. No. 88 Civ. 9127 (DNE). Oct. 6, 1992. OPINION & ORDER EDELSTEIN, District Judge: *1 This opinion addresses three motions in the above-captioned matter. First, defendant/third-party plaintiff Leisure Time Productions, B.V. ("Leisure Time") has moved for reconsideration of this Court's October 15, 1990 Opinion and Order, Tri-Star Pictures, Inc. v. Leisure Time Productions, B.V., 749 F.Supp. 1243 (S.D.N.Y.1990) (the "1990 Decision"), which granted Tri-Star Pictures, Inc. ("Tri-Star") summary judgment in a declaratory judgment action concerning a contract dispute between Tri-Star and Leisure Time. Second, Tri-Star, Columbia Pictures Industries, Inc., and Columbia Pictures Entertainment, Inc. ("Tri-Star and the Columbia Defendants") have moved for summary judgment on Leisure Time's remaining claims, which are: (1) violation of General Business Law § 340 (the Donnelly Act); (2) violation of General Business Law § 368-d; (3) tortious interference with contract; and (4) unfair competition. Third, Academy Pictures A.G. and the Estate of Samuel Spiegel (collectively "Academy") have moved for summary judgment against Leisure Time, claiming that Leisure Time violated the Trademark Act of 1946 (Lanham Act), 15 BACKGROUND "Bridge On The River Kwai" ("Bridge") was produced in 1956 by Sam Spiegel. The corporate vehicles through which Mr. Spiegel produced "Bridge" were Horizon-American Pictures, Inc. and Horizon G.B. Ltd. ("Horizon"). Columbia distributed the film both in the United States and abroad. On April 18, 1956, Albatross Trust, the predecessor of Academy, entered into an agreement ("the 1956 royalty agreement") with Horizon in which Albatross Trust obtained a 25% royalty interest in revenues generated by "Bridge" in the Western Hemisphere, excluding the United States and Canada. "Bridge" was released in 1957, won several Academy Awards, and has been viewed by millions of people in the United States and abroad. Since its release, the film has earned over fifty-five million dollars and continues to earn over one million dollars annually in distributor's gross revenues. On January 5, 1959, Columbia entered into an agreement ("the January 5, 1959 agreement") with Horizon in which Columbia obtained the rights to "Bridge" subject to the already existing rights of Albatross Trust created by the 1956 royalty agreement. On February 2, 1959, Columbia reached a separate agreement ("the February 2, 1959 agreement") with Albatross Trust to settle existing claims for overdue royalties. The new agreement included: (1) a change in Albatross Trust's royalty rate; (2) the right for Albatross Trust to receive royalties on United States and Canadian revenues generated by "Bridge" and (3) a change in the method of computing Albatross Trust's share of the net proceeds derived from "Bridge." In July, 1986, Tri-Star and Leisure Time entered into an agreement (the "Distribution Agreement") whereby Leisure Time granted Tri-Star exclusive distribution rights for the movie "Return From The River Kwai" ("Return") in the United States and Canada. Unbeknownst to Tri-Star, before the signing of the Distribution Agreement, a dispute had arisen regarding the title "Return From The River Kwai." Academy and Columbia had communicated to Leisure Time their position that as a result of the widespread exposure

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Case 1:03-cv-01973-PSF-MJW

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received by the motion picture "Bridge," the title and the geographic term "River Kwai" had attained secondary meaning and was therefore entitled to trademark protection under the Lanham Act. *2 On December 17, 1987, after the execution of the Distribution Agreement, Tri-Star and Columbia Pictures merged and became "sister" companies as wholly owned subsidiaries of Columbia Pictures Entertainment, Incorporated. Tri-Star and Columbia Pictures maintain separate film libraries, and each company is autonomously managed. Upon learning of the title dispute, Tri-Star requested that Leisure Time change the name of "Return" to avoid potential liability. In early November 1988, Leisure Time offered to change the title to "March From The River Kwai" and to add a disclaimer disassociating the motion picture from "Bridge." This offer was not acceptable to Academy. By a letter dated November 17, 1988, Academy advised Tri-Star that any use of the name "River Kwai" would be met with a lawsuit to protect Academy's rights in the title. By letter dated December 5, 1988, Tri-Star informed Leisure Time of Academy's trademark infringement claim. Tri-Star stated that, because of Academy's claim, Tri-Star considered Leisure Time in breach of its warranty to deliver the movie free from claims against it and therefore considered itself free to terminate the Distribution Agreement. In response, Leisure Time threatened to sue for breach of contract if Tri-Star terminated the agreement. In its 1990 Decision, this Court found that Leisure Time had breached an express warranty [FN1] in the Distribution Agreement by adopting and retaining the title "Return From the River Kwai." See Tri-Star, 749 F.Supp. at 1253. The Court granted Tri-Star summary judgment holding that, in light of Academy's assertion of trademark rights in the term "River Kwai," Tri-Star was entitled unilaterally to terminate the Distribution Agreement. DISCUSSION A. Leisure Time's Motion For Reconsideration of the 1990 Decision

Leisure Time contends that reconsideration of the 1990 Decision is appropriate due to newly discovered evidence--gleaned subsequent to the 1990 Decision-- which demonstrates that Tri-Star is not entitled to summary judgment because: (1) Academy would be subject to a defense of laches; and (2) Academy's ownership interest in sequel or trademark rights in "Bridge" is disputed. Therefore, Leisure Time contends that, in the interest of justice, the Court should vacate its 1990 Decision. The decision whether to reconsider an interlocutory opinion is discretionary with the district court. See Marconi Wireless Co. v. United States, 320 U.S. 1, 47-48 (1943). This authority should be exercised sparingly, however, in light of the strong policy considerations favoring finality with regard to adjudicated issues. United States v. Adegbite, 877 F.2d 174, 178 (2d Cir.), cert. denied, 493 U.S. 956 (1989). Thus, the law-of-the-case doctrine generally militates against reconsideration of a judicial decision absent a truly compelling justification. The law-of-the-case doctrine is premised on the principle that "where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir.), cert. denied, 377 U.S. 934 (1964). Courts "generally adhere to [their] own earlier decision on a given issue in the same litigation." Adegbite, 877 F.2d at 178 (citations omitted); see also United States v. Uccio, 940 F.2d 753, 758 (2d Cir.1991). The "power to reconsider and modify ... prior interlocutory rulings is informed by the second branch of the law-of-the-case doctrine ... [which requires] that when a court has ruled on an issue, that decision should generally be adhered to ... in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618 (1983). Indeed, the law-of-the-case doctrine is crucial in the context of ongoing litigation because "efficient disposition of the case demands that each stage of the litigation build on the last and not afford an opportunity to reargue every previous ruling." 1B James W. Moore, et al., Moore's Federal Practice ¶ 0.404[1], at 118 (2d ed.1988). *3 The Court will reconsider its prior rulings only when presented with " 'cogent' or 'compelling' reasons" to do so,

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such as " 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.' " Doe v. New York City Dep't Social Serv., 709 F.2d 782, 789 (2d Cir.) (citing 18 Wright, Miller & Cooper § 3378 at 790), cert. denied, 464 U.S. 864 (1983); see also, Uccio, 940 F.2d at 758; United States v. Yonkers Bd. of Educ., 856 F.2d 7, 11 (2d Cir.1988). In order to meet this threshold requirement for reconsideration, the party seeking reconsideration must demonstrate that the Court's adherence to the earlier holding would be "clearly erroneous and would work a manifest injustice". Arizona v. California, 460 U.S. 605, 618 n. 8 (1983). In addition, where a party seeks reconsideration on the basis of newly discovered evidence, the proponent must demonstrate that the newly discovered evidence was neither in his possession nor available upon the exercise of reasonable diligence at the time the interlocutory decision was rendered. The Court will not set aside a judgment because a frustrated litigant failed to present on a motion for summary judgment all facts known by or reasonably available to him. The test here is the same as under Federal Rule of Civil Procedure 60(b): If evidence was in the possession of the party before the judgment was rendered, or reasonably would have been available to him, it is not "newly discovered" and does not entitle him to relief. 11 Wright & Miller § 2859 at 182-83; see also Fay Corp. v. Bat Holdings I, Inc., 651 F.Supp. 307, 309 (W.D. Wash.1987) ("Motions for reconsideration ... are not justified on the basis of new evidence which could have been discovered prior to the Court's ruling."). In sum, a party moving for reconsideration based on newly discovered evidence must, at a minimum, demonstrate that: (1) the proffered evidence was unavailable in spite of the exercise of due diligence in procuring evidentiary support; and (2) manifest injustice will result if the court opts not to reconsider its earlier decision. Leisure Time has failed to satisfy either requisite. 1. Allegedly New Evidence of Academy's Laches The first piece of allegedly newly discovered evidence that Leisure Time offers is that "Spiegel (and, therefore,

Academy) knew as early as 1978 that Leisure Time intended to produce the motion picture ['Return From the River Kwai'], not 1987 as Academy previously claimed. So did Columbia." Memorandum of Law of Defendant/Third-Party Plaintiff Leisure Time Productions, B.V. In Support of its Motion for Reconsideration of the October 15, 1990 Opinion and Order ("Leisure Time's Memorandum in Support of Reconsideration"), at 6. Leisure Time concludes that "[i]t is difficult to conceive of a more egregious case of laches." Id. at 7. Therefore, Leisure Time argues, because Academy's laches would bar it from obtaining relief against Tri-Star, Tri-Star should not be relieved of its duty to comply with the Distribution Agreement. Id. at 8. Furthermore, Academy claims that Tri-Star knew that Academy's alleged laches would bar a preliminary injunction. Leisure Time's Memorandum in Support of Reconsideration, at 17-18. *4 Leisure Time's argument with respect to Academy's laches is wholly without merit. Even assuming arguendo that the Court found Academy guilty of laches, [FN2] such a finding would not be dispositive because it would not affect the propriety of summary judgment. Laches is an equitable defense that bars injunctive relief where a plaintiff unreasonably delays bringing a law suit. See Stone v. Williams, 873 F.2d 620, 623 (2d Cir.), cert. denied, 493 U.S. 959 (1989). In contrast to the running of a statute of limitations, laches does not bar all claims but rather results in the " 'denial of injunctive relief' " where " 'equitable considerations dictate.' " Securities Indus. Assoc. v. Clarke, 885 F.2d 1034, 1041 (2d Cir.1989), cert. denied, 493 U.S. 1070 (1990) (quoting New Era Publications Int'l v. Henry Holt & Co., 873 F.2d 576, 584 (2d Cir.1989)). Thus, laches would not bar all potential claims that Academy could raise against Tri-Star in the event that Tri-Star was bound by the Distribution Agreement. Academy's claim for damages for diminution of its trademark rights, for example, would survive a finding that Academy was guilty of laches. Therefore, Tri-Star would be permitted to terminate the Distribution Agreement under the express provisions of that document, regardless of Academy's purported laches. See supra at 5 n. 1. Moreover, Leisure Time has failed to demonstrate that

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evidence regarding Academy's purported laches was unavailable after the exercise of due diligence. Indeed, the substance of this allegation was before the Court during the prior proceedings in this matter. See Unger Affidavit, Exhibit A (June 18, 1987 letter of Paul Kohner). Therefore, the Court finds that Leisure Time has failed to meet the standard required for reconsideration on the basis of new evidence concerning Academy's laches. 2. Allegedly New Evidence Regarding the Ownership of "Bridge On The River Kwai" The second piece of "new" evidence that Leisure Time offers in support of its motion for reconsideration relates to Academy's ownership of rights to "Bridge." Leisure Time contends that a "recent discovery confirms, beyond doubt, that Columbia owns all legal right in ["Bridge"], including all rights in the trademark and title and all sequel rights." Leisure Time's Memorandum in Support of Reconsideration, at 21. This "new" evidence is apparently derived from a 1959 Bill of Sale, see id. at 10, and deposition testimony of Academy's counsel, Al Heit. See id. at 11. Once again, however, Leisure Time has failed to demonstrate that the proffered "new" evidence is either new or dispositive. The issue of the ownership of rights in "Bridge" was clearly before the Court at the time of the 1990 Decision. Leisure Time repeatedly emphasized the point it now claims is newly discovered. See, e.g., Reply Brief of Leisure Time Productions, B.V. (July 13, 1989), at 1-2; Leisure Time's Memorandum of Points and Authorities (May 26, 1989), at 5, 14-18; Davis Affidavit (May 26, 1989), at 2-8. Indeed, Leisure Time is merely attempting to reargue the merits of a claim it has advocated since the beginning of this litigation. As such, the purportedly "new" evidence of ownership in "Bridge" does not merit reconsideration. *5 In sum, reconsideration of the 1990 Decision is unwarranted. The Court's discretion to reconsider interlocutory orders is not without boundaries. The purpose of this authority is to prevent manifest injustice-- not to provide frustrated litigants a forum in which to reiterate aged arguments. The law-of-the-case doctrine expresses the common sense proposition that litigants who have once had the opportunity fully and fairly to argue their claims should

not lightly be granted a second opportunity to do so. Absent truly compelling justification, policy considerations demand that both litigants and the Court be spared the delay and expense inexorably linked to reconsideration of a decision. Because the Court finds that Leisure Time has presented neither new evidence nor demonstrated that manifest injustice will result if it does not prevail on its motion to reconsider the 1990 Decision, the motion is denied. B. Summary Judgment A party seeking summary judgment must demonstrate "that there is no genuine issue as to any material fact" such that it "is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932 (1987). The moving party has the initial burden of establishing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If the movant satisfies this prerequisite, the non-moving party may nonetheless defeat summary judgment by coming forward with specific facts that show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see also Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment will be denied if the evidence bolstering the non-moving party's case is sufficient to lead a rational trier of fact to return a verdict in his favor. National Union Fire Ins. Co. v. Walton Ins. Ltd., 696 F.Supp. 897, 900 (S.D.N.Y.1988). In determining whether this burden has been met, however, "[i]t has long been the rule that 'on summary judgment the inferences to be drawn from the underlying facts contained in [the moving party's] materials must be viewed in the light most favorable to the party opposing the motion.' " Lendino v. Trans Union Credit Info. Co., 1992 U.S.App. LEXIS 17215, *5 (2d Cir.1992) (quoting Adickes, 398 U.S. at 158- 59). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11 (citations omitted). 1. Tri-Star Pictures, Inc., Columbia Pictures Industries, Inc., and Columbia Pictures Entertainment, Inc.'s Motion for Summary Judgment on Remaining Claims

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This Court disposed of the contractual dispute between Tri-Star and Leisure Time in its 1990 Decision by holding that Leisure Time breached the Distribution Agreement. Leisure Time's remaining claims against Tri-Star and the Columbia defendants are: (1) violation of General Business Law § 340 (the Donnelly Act); (2) violation of General Business Law § 368-d; (3) tortious interference with contract; and (4) unfair competition. In light of the Court's earlier decision in this matter, Tri-Star is entitled to summary judgment on these claims as a matter of law. *6 Leisure Time concedes that, if the 1990 Decision is not reconsidered and vacated, "Columbia's and Tri-Star's motion for summary judgment should be granted." Memorandum of Law of Defendant/Third-Party Plaintiff Leisure Time Productions, B.V. In Opposition to the Motions for Summary Judgment of Plaintiff Tri-Star Pictures, Inc. and Third-Party Defendants Columbia Pictures Industries, Inc. and Columbia Pictures Entertainment, Incorporated. Indeed, defendants must concede this point. In light of the Court's 1990 Decision, Leisure Time cannot prove that its damages were proximately caused by either Tri-Star or the Columbia Defendants. Causation is an essential element of each of the remaining claims. See Schlanger v. Four-Phase Sys., Inc., 555 F.Supp. 535, 538 (S.D.N.Y.1982) ("causation is an essential element of all tort cases"); Van Dussen-Storto Motor Inn, Inc. v. Rochester Tel. Corp., 63 A.D.2d 244, 252 (4th Dep't 1978) (proximate cause requirement under the Donnelly Act); Prosser & Keeton, Torts § 129 (5th Ed.1984) ("[T]o be held liable for interference with a contract, the defendant must be shown to have caused the interference and the loss."). Without proving causation, Leisure Time's remaining tort claims fail. Thus, as this Court has already stated, "[b]ecause Tri-Star did not breach its contract with [Leisure Time], Leisure Time's claims are deficient as a matter of law." Tri-Star, 749 F.Supp. at 1254. Tri-Star's and the Columbia Defendants' motion for summary judgment on the remaining claims must therefore be granted. 2. Academy Pictures A.G.'s and the Estate of Samuel Spiegel's Motion for Summary Judgment In order to prevail on its Lanham Act claim, Academy must demonstrate that there is a likelihood of confusion between

its mark and the title of Leisure Time's film, "Return From The River Kwai." The test to determine likelihood of confusion between the marks is that enunciated in Polaroid Corp. v. Polarad Elec. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961); see also Western Publishing Co., Inc. v. Rose Art Indus., Inc., 910 F.2d 57, 60-61 (2d Cir.1990) ("[t]he 'likelihood of confusion' as to product source is evaluated by balancing the ... factors articulated by Judge Friendly in Polaroid."). In Polaroid, the Second Circuit held that eight factors should be considered in order to evaluate the likelihood of confusion between marks: (1) the strength of plaintiff's mark; (2) the degree of similarity between plaintiff's and defendant's mark; (3) proximity of products or services; (4) the likelihood that plaintiff will "bridge the gap" into defendant's market; (5) evidence of actual confusion, generally garnered from surveys; (6) defendant's good faith in adopting the mark; (7) the quality of defendant's product; and (8) the sophistication of the target audience or projected purchasers of the product. See Polaroid, 287 F.2d at 495. *7 The Polaroid analysis is inherently ill-suited to summary judgment. As one preeminent scholar has noted, "[i]n this area, each case is decided on its own facts; if the cases share a common principle, it is their attempt to articulate a fair and just result taking into account all the circumstances...." Jane C. Ginsburg, et al., Trademark and Unfair Competition Law 350 (1991). Indeed, "[a]s the Second Circuit has admonished, 'disputes between parties as to trademark validity and infringement can rarely be determined satisfactorily on a motion for summary judgment.' " Frederick Warne & Co., Inc. v. Book Sales, Inc., 481 F.Supp. 1191, 1195 (S.D.N.Y.1979) (quoting Marcus Breier Sons v. Marvlo Fabrics, 173 F.2d 29 (2d Cir.1949)). Lanham Act claims are uniquely fact-intensive and are best decided after the trier of fact is afforded exposure to opposing litigants' arguments in the court room. Academy has made a strong preliminary showing that it is entitled to relief under the Lanham Act. Surveys submitted to the Court demonstrate that a substantial portion of the sample population is misled by Leisure Time's title. Many of those queried responded--mistakenly--that Leisure Time's "Return From The River Kwai" is a sequel to Academy's

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film, "Bridge On The River Kwai". Indeed, it may be telling that Leisure Time has failed to counter Academy's cogent survey data with a survey of its own. Nonetheless, disputed issues of material fact exist such that summary judgment is inappropriate at this juncture. As indicated above, in evaluating a motion for summary judgment, the Court must resolve ambiguities and draw reasonable inferences against the moving party. See Knight, 804 F.2d at 11. In the instant case, viewing the facts in a light most favorable to Leisure Time, there exist disputed issues of fact as to, inter alia, (1) whether Academy is guilty of laches; (2) whether Academy's mark is sufficiently strong to merit expansive trademark protection; and, (3) whether the term "River Kwai" has acquired secondary meaning and, indeed, whether the term denotes a geographical location or is fanciful shorthand for the "River Kwae Noi." Because these factual issues must be resolved, summary judgment is not appropriate at this time. See Fed.R.Civ.P. 56(c). Academy's motion for summary judgment on its Lanham Act claim must therefore be denied. CONCLUSION For the reasons stated above, Leisure Time's motion for reconsideration of the 1990 Decision is DENIED. Tri-Star and the Columbia Defendants' motion for summary judgment on Leisure Time's remaining causes of action is GRANTED. Finally, Academy's motion for summary judgment on its Lanham Act claim against Leisure Time is DENIED. SO ORDERED. FN1. Leisure Time represented and warranted under ¶ 9(a)(2) of Exhibit "A" to the Distribution Agreement that "Return From The River Kwai" would be provided for distribution free from "claims, liens, encumbrances or rights of any nature ... which can or will impair or interfere" with Tri-Star's distribution of the film. Paragraph 9(a)(2) of Exhibit "A" further warrants that the film will not "infringe upon the trademark" of another party. See Tri-Star Pictures, Inc. v. Leisure Time Productions, B.V., 749 F.Supp. 1243, 1247-50 (S.D.N.Y.1990).

FN2. "The existence of laches is a question primarily addressed to the discretion of the trial court," which must consider the "equities of the parties." Gardner v. Panama R.R. Co., 342 U.S. 29, 30-31 (1951) (per curiam). Laches is applied where it is clear that a plaintiff unreasonably delayed in initiating action and a defendant was prejudiced by the delay. See Robins Island Preservation Fund, Inc. v. Southold Dev. Corp., 959 F.2d 409, 423 (2d Cir.1992). Not Reported in F.Supp., 1992 WL 296314 (S.D.N.Y.), 1992-2 Trade Cases P 69,990 Motions, Pleadings and Filings (Back to top) · 1:88cv09127 (Docket) (Dec. 27, 1988) END OF DOCUMENT

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