Opinion
14-P-260
11-17-2014
SAMUEL BARTLEY STEELE v. BOSTON RED SOX BASEBALL CLUB LIMITED PARTNERSHIP & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the latest chapter in a prolonged dispute over the rights to the lyrics and marketing concept of "I Love This Town." The audiovisual advertisement featured the band Bon Jovi and was used by Major League Baseball (MLB) and Turner Broadcasting System, Inc. (TBS) to promote its broadcasts of 2007 and 2008 postseason baseball games. After three different unsuccessful attempts to recover damages for alleged violations of Federal copyright law in actions brought in the United States District Court for the District of Massachusetts, the plaintiff sought recovery in the Superior Court, asserting State law claims of unjust enrichment and civil conspiracy. The judge below granted the defendants' Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), motion to dismiss, ruling that the Federal court judgments had a preclusive effect. We agree, and therefore affirm.
Steele v. Turner Bdcst. Sys., Inc., 746 F. Supp. 2d 231 (D. Mass. 2010); Steele v. Bongiovi, 784 F. Supp. 2d 94 (D. Mass. 2011); Steele v. Ricigliano, 789 F. Supp. 2d 245 (D. Mass. 2011).
The motion judge also found the plaintiff's claims to be preempted by the Federal Copyright Act. See Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir. 2004). We need not reach this issue.
Background. In 2004, the plaintiff composed a "country-rock Boston Red Sox and baseball-themed musical anthem" entitled, 'Man I Really Love This Team.'" Subsequently, the plaintiff developed a "concept" or "marketing plan" for how the song lyrics could be adapted to other professional baseball markets outside of Boston, leading him to create a piece entitled, "Man I Really Love This Town" (Town Song). The plaintiff distributed numerous copies of his CDs and accompanying lyric sheets to Red Sox and MLB executives between 2004 and 2006 in the hopes of entering into a business relationship. Ultimately, no such relationship materialized.
In the summer of 2007, TBS aired its "I Love This Town" advertising campaign in promotion of its 2007 MLB postseason telecasts, prompting the plaintiff to file a pro se action in the Federal District Court in 2008 naming many of the same defendants that are named in the instant action. The judge concluded that the Bon Jovi song and advertisement did not have a "substantial similarity" to the Town Song under the Federal Copyright Act, and entered judgment for the defendants. Steele v. Turner Bdcst. Sys., Inc., 746 F. Supp. 2d 231 (D. Mass. 2010) (Steele I). The plaintiff filed Steele v. Bongiovi, 784 F. Supp. 2d 94 (D. Mass. 2011) (Steele II), in July, 2010, and Steele v. Ricigliano, 789 F. Supp. 2d 245 (D. Mass. 2011) (Steele III), a month later. Both Steele II and Steele III involved many of the same defendants as Steele I, alleged Federal copyright violations, and were dismissed as precluded by Steele I.
Discussion. To survive a motion to dismiss, a complaint must contain sufficient factual matter to support "allegations plausibly suggesting . . . an entitlement to relief . . . ." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (citations omitted). We review the allowance of a motion to dismiss de novo, accepting as true the facts alleged in the plaintiff's complaint as well as any favorable inferences that can reasonably be drawn therefrom. Galiastro v. Mortgage Elec. Registration Sys., 467 Mass. 160, 164 (2014).
In our review of the preclusive effect of a prior Federal court judgment, we apply Federal claim preclusion principles. Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 564 (2004). Claim preclusion bars a subsequent lawsuit if there is: (1) a prior final judgment on the merits, (2) sufficient relatedness between the claims asserted in the prior and subsequent actions, and (3) sufficient relatedness between the parties in the two suits. Airframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 14 (1st Cir. 2010). Claim preclusion operates to bar not only claims that were actually made in a prior lawsuit, but also claims that could have been raised. Ibid.
Turning to the unjust enrichment claim, we conclude that the plaintiff may not relitigate his copyright infringement grievance in the guise of a State law unjust enrichment cause of action. First, there is no dispute that Steele I constitutes a final judgment on the merits. Second, the gravamen of the claim asserted here is indistinguishable from the plaintiff's earlier copyright claims. Simply put, notwithstanding the plaintiff's efforts to recast his claim, he continues to seek compensation for what he believes to be the defendants' wrongful copying of his song lyrics and marketing concept. Furthermore, all of the named defendants in this action were either present in Steele I or are closely affiliated with the original named defendants. The factors for applying claim preclusion are therefore clearly met with respect to the unjust enrichment claim. The plaintiff's related argument that claim preclusion ought not apply in this case because the judgment in Steele I was obtained by "fraud on the court" is also precluded. The court in Steele I expressly rejected the plaintiff's allegations that the defendants made fraudulent misrepresentations to the court, finding "no evidence of bad faith on the part of the Defendants." Steele I, supra at 239.
Finally, the plaintiff's brief is bereft of any factual or legal argument relating to the motion judge's dismissal of the civil conspiracy claim, apart from the conclusory statement that the plaintiff should prevail. This is insufficient appellate argument, and therefore the issue is not properly before us. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 919 (1975). Even if the issue had been sufficiently presented, however, the plaintiff's civil conspiracy claim is also barred under claim preclusion principles. The underlying conduct supporting this claim is exactly the same alleged wrongful copying of and benefit from the Town Song lyrics and concept, and there is no reason why the existence of concerted action to accomplish such copying could not have been argued in Steele I.
Judgment affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 17, 2014.