Opinion
Case No. 04-73653.
December 15, 2004
OPINION AND ORDER DENYING MOTION TO REMAND
This matter comes before the Court on plaintiff Rosa Parks' motion to remand this case to Wayne County Circuit Court. This case, referred to as Parks II, also relates to the "Rosa Parks" song by OutKast. Plaintiff's complaint alleges causes of action including infringement of right to publicity, misappropriation of name — false endorsement, unfair competition, unjust enrichment, negligence, conspiracy, accounting and injunctive relief. Plaintiff further alleges that there is no diversity of citizenship because two of the named defendants, Borders Group and Jasper Littlejohn, are citizens of Michigan, as is the plaintiff.
Count II, entitled "misappropriation — false endorsement", plainly relies on a federal legal theory, that being violation of the Lanham Act. The relevant portion of section 43(a) of the Trademark Act provides that any person who, in connection with any goods, uses in commerce any name or false or misleading representation of fact, which is likely to cause confusion, mistake or to deceive as to the affiliation of such person with another person, or as to the origin, sponsorship or approval of goods by another person, shall be liable in a civil action. Defendants in Parks II are accused of falsely representing Rosa Parks as being affiliated with defendants' enterprises, and deceptively presenting to the public that Ms. Parks is affiliated with defendants' goods. There are no Michigan cases discussing a state law tort of "false endorsement."
The earlier-filed Parks I case, Civil Case No. 99-76405, alleges a violation of section 43(a) and characterizes that violation as "false endorsement" as well. The language of these causes of action are almost identical, with the exception that a few words have been changed. For example, Parks I recites the statutory term "commerce" and Parks II changes "commerce" to "marketplace." "Plaintiffs may not avoid removal by artfully pleading their claims to omit references to preemptive federal law." Terwilliger v. Greyhound Lines, 882 F.2d 1033, 1037 (6th Cir. 1989). Count II is a federal claim, and therefore supports this Court's exercise of subject matter jurisdiction.
This Court also has diversity of citizenship where a party has been "fraudulently" joined merely to defeat diversity jurisdiction. See Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) ("[T]his Court has recognized that fraudulent joinder of non-diverse defendants will not defeat removal on diversity grounds.") The Court is permitted to go outside the pleadings and assess whether the plaintiff has a colorable basis for including the non-diverse defendants. SeeGraphic Resources Group, Inc. v. Honeybaked Ham Co., 51 F. Supp.2d 822, 825 (E.D. Mich. 1999).
Mr. Littlejohn was an unpaid extra in the music video for the "Rosa Parks" song. There is no allegation that he had anything to do with writing, naming or recording the song in question, or even the content of the music video. At the point at which Mr. Littlejohn became involved, the song had already been written and named. There is no allegation or evidence that Mr. Littlejohn had the level of culpability required to be deemed a contributory infringer. Plaintiff's stated reason for naming Mr. Littlejohn as a party is because of his role in the music video, which can be considered a marketing tool for the song. It is curious that plaintiff did not name any of the other actors who appeared in the video.
Borders is a retailer that had nothing to do with writing or naming the song in question. The only allegation concerning Borders is that it is a retailer that sold copies of the albums containing the "Rosa Parks" song. Plaintiff has been aware of commercial distribution of albums containing the "Rosa Parks" song for over five years. A declaration from the assistant general counsel for Borders Group states that Borders has not ordered or sold the Aquemini album or the album entitled LaFace Records Presents the Platinum Collection, from September 30, 2003 through September 30, 2004. During the same period, Borders sold 2,632 units of the album Big Boi and Andre Present . . . OutKast. (Kreuger Decl. at ¶¶ 3, 4). Borders also states that if the "Rosa Parks" song was found to infringe, Borders would cease its sales of this album. (Krueger Decl. at ¶ 6).
In Rose v. Giamatti, 721 F.Supp. 906 (S.D. Ohio 1989), the court faced a similar situation in a suit brought by baseball player/manager Pete Rose against the Commissioner of Baseball concerning disciplinary proceedings against Rose. Plaintiff joined "Major League Baseball" as a defendant, and alleged that it was a non-diverse Ohio citizen. The court concluded that the League was a "neutral bystander" in the dispute between Rose and the Commissioner and a merely nominal party whose duty to act or refrain from acting would flow entirely from the result of the dispute between Rose and the Commissioner. Id. at 917-22. If plaintiff in this case has any enforceable right at all against Borders, it would be dependent on any rights she may have against OutKast, BMG, LaFace or Artista.
There are no allegations against Borders or Mr. Littlejohn that either party had anything to do with writing or naming the song, or marketing or distribution of albums that contain it. The Complaint seeks $1.5 billion in damages and an additional $3.5 billion in punitive damages, requesting that each defendant be held jointly and severally liable for any monetary award. Under Michigan's tort reform legislation, the doctrine of joint and several liability among multiple tortfeasors was replaced with the doctrine of several liability. "Under the new system, defendants are now only accountable for damages in proportion to their percentage of fault." Essell v. George W. Auch Co., 2004 WL 345288, at *3 (Mich.Ct.App. 2004) (citing M.C.L.A. § 600.2956). There is no colorable basis for imposing any contributory or several liability on Borders or Littlejohn for the acts of any party involved with creation and distribution of the albums in question. These parties are "nominal", and as such their citizenship will be disregarded for purposes of evaluating diversity jurisdiction.
Plaintiff's motion to remand is DENIED for the reasons stated in this opinion and order.