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Case: 3:16-cv-00198-MPM-RP Doc #: 1 Filed: 08/31/16 1 of 11 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

38 FILMS, LLC AND DR. CHARLES E. SMITH, JR.

VS.

CIVIL ACTION

WENDY YAMANO; MT. PHILO FILMS, LLC; ESPN, INC; LASPATA DECARO STUDIO CORP. JOHN DOES 1-3; AND XYZ CORPORATIONS 1-3

COMPLAINT

PLAINTIFFS

DEFENDANTS

COME NOW 38 Films, LLC ("38 Films") and Dr. Charles E. Smith, Jr. ("Dr. Smith")

and file this Complaint against Wendy Yamano, Mt. Philo Films, ESPN, Inc., Laspata Decaro

Corp., John Does 1-3, and XYZ Corporations 1-3.

state the following:

In support thereof, 38 Films and Dr. Smith

PARTIES

1. 38 Films is a Mississippi LLC, and all of its members are Mississippi residents.

2. Dr. Smith is an adult resident citizen of Mississippi.

3. Wendy Yamano is a resident of North Carolina, and can be served with process at

406 Bellflower Lane, Wilmington, NC 28412-3461.

4. Mt. Philo Films, LLC is a North Carolina LLC whose members are citizens of

North Carolina and Vermont.

address listed above.

It can be served through its registered agent Ms. Yamano at the

5. ESPN, Inc. is a Delaware corporation with its principal place of business in

Connecticut.

It can be served with process via Corporate Service Systems, 2711 Centerville

Road, Wilmington, Delaware, 19808.

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6. Laspata Decaro Corp. is a New York corporation with its principal place of

business at 450 West 15th Street, Suite 600, New York, NY, 10011.

process at that address.

It can be served with

7. John Does 1-3 are individuals not currently known by name to the Plaintiff who

were involved with It's Time.

8. XYZ Corporations are corporate entities (including but not limited to companies,

corporations, partnerships, etc.) not currently known by name to the Plaintiff who were involved

with It's Time.

JURISDICTION AND VENUE

9. The amount in controversy between the parties exceeds $75,000.

10. This Court has jurisdiction over all of the Defendants.

11. The Court has general jurisdiction over ESPN, because those entities are at home

in Mississippi due to the volume of their contacts here.

12. Further, the Court has specific jurisdiction over all other Defendants because this

case arises out of the Defendants' purposeful availment of Mississippi, and their Mississippi

contacts.

13. This Court has subject matter jurisdiction over the dispute under 28 U.S.C. § 1332

because the Plaintiffs are diverse from the Defendants, and the amount in controversy exceeds

$75,000.

14. In the alternative, this Court has subject matter jurisdiction under 28 U.S.C. §

1338, because some of the claims herein arise under the United States Copyright Act, and it

should exercise supplemental jurisdiction over the other claims.

15. Venue is appropriate in this district because a substantial portion of the relevant

acts and communications occurred within this judicial district.

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FACTUAL ALLEGATIONS

16. In early 2004, Dr. Chuck Smith was approached about making a documentary

about the life of Roy Lee "Chucky" Mullins, who played football at Ole Miss before suffering a

tragic, permanent injury.

 

17.

Dr. Smith created 38 Films, LLC for the purpose of making the documentary.

18.

Dr. Smith is a member of 38 Films, LLC.

19.

In 2004, 38 Films hired Micah Ginn and Matthew Nothelfer to assist with the

film.

 

20.

38 Films spent over $90,000 to create the documentary.

21.

On or about October 24, 2004, 38 Films released the documentary entitled

Undefeated: The Chucky Mullins Story.

22. Undefeated is subject to copyright protection as a matter of law, and it is

registered with the United States Copyright Office.

23. Undefeated is an original work of authorship fixed in a tangible medium of

expression.

24. On or about May 27, 2014, Wendy Yamano approached Micah Ginn seeking 38

Films' permission to use portions of Undefeated in a film.

primarily about former Vanderbilt player Brad Gaines.

correspondence to Dr. Smith.

She claimed that the film would be

Mr. Ginn forwarded Ms. Yamano's

25. On May 29, 2014,

Ms. Yamano e-mailed Dr. Smith directly and reiterated her

request.

26. Ms. Yamano stated that she was working on the project for ESPN, among others.

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27. Dr. Smith and Ms. Yamano spoke on the telephone on May 30, 2014. Dr. Smith,

acting on behalf of 38 Films, reached an oral agreement with Ms. Yamono, who was acting on

her own behalf, and on behalf of all of the other Defendants to this lawsuit.

28. Ms. Yamano agreed that the film she was working on would list Undefeated in

the source credits, and would pay 38 Films $3,000 for each minute of footage used from

Undefeated.

29. On June 2, 2014, Ms. Yamano sent an e-mail to Mr. Ginn confirming that she

"[s]poke to Chuck [Dr. Smith] at length on Friday and we have come to agreement. I'm working

on drawing up paperwork to use as a license agreement[.]"

30. In reliance on Ms. Yamono's statement, Mr. Ginn sent 38 Films' entire digital

archive to Ms. Yamono that same day. Id.

31. Dr. Smith next heard from Ms. Yamano on August 21, 2014, when she called him

on the phone. Ms. Yamano claimed for the very first time that 38 Films had no rights to any of

the intellectual property 38 Films had sent to her.

32. Dr. Smith was in the hospital caring for his mother, who was near death, when

Ms. Yamono called.

He unequivocally refuted Ms. Yamano's arguments, but told her that he

could not speak with her in detail due to his mother's condition.

33. On September 1, 2014, Dr. Smith wrote Ms. Yamano, reiterating that 38 Films

had not agreed to "the [Defendants'] use of any real or intellectual property belonging to 38

Films in the new documentary project."

34. Ms. Yamano responded that same day, stating that while she had originally agreed

to pay a licensing fee of $3,000 a minute and provide proper source attribution to Undefeated, "it

[later] became apparent" that she "would be unable to license any of the footage[.]" Id.

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Accordingly, Ms. Yamono proposed amending the prior contract to pay 38 Films a lump-sum

payment of $3,000 "as a mastering fee." Id.

35. On September 4, 2014, Ms. Yamono sent a second e-mail requesting that 38

Films send a $3,000 invoice and a W-9.

36. 38 Films responded that it was "not invoicing"

because that was not what the parties had agreed to.

Defendants for a $3,000 flat fee

37. That same day, the SEC Network, an ESPN entity, aired It's Time.

38. It's Time features interviews from the exact same players, telling the exact same

stories, as Undefeated.

39. It's Time does not contain a single attribution to Undefeated; instead, it merely

includes a "special thanks" to Dr. Smith, individually.

40. Ms. Yamano was acting as agent for each and every one of the Defendants named

in this lawsuit.

COUNT I: BREACH OF CONTRACT

41. The preceding Paragraphs in the Complaint are incorporated by reference as if

fully restated here.

42. On May 29, 2014, 38 Films and Ms. Yamano contractually agreed that in

exchange for specific consideration, Defendants would list Undefeated in the source credits, and

would pay 38 Films $3,000 for each minute of footage used from Undefeated.

43. Ms. Yamano was acting on the behalf of all Defendants, or at minimum was

acting with apparent authority.

44. On June 2, 2014, 38 Films provided the necessary consideration its intellectual

property to Ms. Yamano.

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45. After receiving consideration in the form of 38 Films' archive, Defendants

unilaterally breached the agreement, refusing to (a) pay the agreed-upon sum of $3,000 a minute

and (b) provide proper attribution to Undefeated.

46. Even after she was told that she was in breach of the Agreement, Ms. Yamano

refused to comply.

47. The Defendants' breaches caused 38 Films economic damages in the form out of

out-of-pocket costs, past and future loss profits, and attorney's fees.

48. The Defendants' breaches also caused Dr. Smith severe emotional distress.

49. The Defendants' breach of contract was willful and intentional, such that they

should be liable for punitive damages and attorney's fees.

COUNT II: FRAUDULENT MISREPRESENTATION

50. The preceding Paragraphs of the Complaint are incorporated as if they were fully

restated here.

51. On May 30, 2014, the Defendants, acting through Wendy Yamano, fraudulently

stated that they would list Undefeated in the source credits of It's Time, and would pay 38 Films

$3,000 for each minute of footage used from Undefeated in It's Time, in exchange for 38 Films

providing the Defendants full access and rights to 38 Films' digital archive.

52. The false statement was material.

38 Films would not have provided the

Defendants access to its digital archives without a promise of compensation.

53. The statement was knowingly false when it was made, and it was made with the

intent for 38 Films to rely on it. Indeed, the Defendants knew that they intended to appropriate

Undefeated for their own commercial gain.

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54. 38 Films did not know the Defendants' statement was false.

entitled to rely, on the statement.

It relied, and was

55. 38 Films suffered economic damages due to the Defendants' false statements, in

the form out of out-of-pocket costs, past and future loss profits, and attorney's fees.

56. Dr. Smith suffered emotional distress due to the Defendants' false statements.

57. The Defendants' misrepresentations were willful and intentional, such that they

should be liable for punitive damages and attorney's fees.

COUNT III: NEGLIGENT MISREPRESENTATION

58. The preceding Paragraphs of the Complaint are incorporated as if they were fully

restated here.

59. On May 30, 2014, the Defendants stated that they would list Undefeated in the

source credits, and would pay 38 Films $3,000 for each minute of footage used from Undefeated.

in exchange for 38 Films providing the Defendants full access and rights to 38 Films' digital

archive.

60. The false statement was material.

38 Films would not have provided the

Defendants access to its digital archives without a promise of compensation.

61. The statement was made without knowing whether it was true or false, and it was

made with the intent for 38 Films to rely on it.

62. 38 Films did not know the Defendants' statement was false.

entitled to rely, on the statement.

It relied, and was

63. 38 Films suffered economic damages due to the Defendants' false statements, in

the form of (among others) out-of-pocket costs, past and future loss profits, and attorney's fees.

64. Dr. Smith suffered emotional distress due to the Defendants' false statements.

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65. The Defendants' misrepresentations were grossly negligent, such that they should

be liable for punitive damages and attorney's fees.

COUNT IV: CONVERSION

66. The preceding Paragraphs of the Complaint are incorporated as if they were fully

restated here.

67. Since June 2, 2014, the Defendants have been in wrongful possession of property

owned by 38 Films.

68. The Defendants have, at all times since June 2, 2014, remained in wrongful

possession of said property, with the intent to exercise dominion or control over the property that

is inconsistent with 38 Films' true right.

69. The Defendants' acts have caused 38 Films damages in the form of (among

others) out-of-pocket costs, past and future loss profits, and attorney's fees.

70. Dr. Smith suffered emotional distress due to the Defendants' false statements.

71. Further, the Defendants' conduct was intentional, such that they should be liable

for punitive damages and attorney's fees.

COUNT V: COPYRIGHT INFRINGEMENT

72. The preceding Paragraphs of the Complaint are incorporated as if they were fully

restated here.

73. Though the acts described in this Complaint, the Defendants have willfully

infringed upon 38 Films' copyright.

74. The Defendants are liable for willful violation of the Copyright Act.

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75. 38 Films filed an application with the U.S. Copyright Office.

Undefeated was

registered with the U.S. Copyright Office on or about May 28, 2015. A copy of the certificate of

registration is attached as Exhibit "A".

76. Further, Undefeated was entitled to copyright protection as a matter of law no

later than the day it was released.

77. 38 Films is entitled to damages and attorney's fees, as specified in the Copyright

Act.

COUNT VI: NEGLIGENT HIRING

78. The Defendants were negligent in hiring Ms. Yamano to perform documentary

work.

79. The Defendants, at all times, had the right to control Ms. Yamano's work.

80. Despite said control, the Defendants did not train Ms. Yamano regarding the

appropriate methods for securing footage to be used in broadcasts and documentaries.

81. Further, the Defendants placed an unreasonable budget on Ms. Yamano, and

accordingly had reason to know Ms. Yamano would be pressured to use unlawful methods to

make the film.

82. Defendants' negligent hiring and retention caused 38 Films to suffer economic

damages in the form of (among others) out-of-pocket costs, past and future loss profits, and

attorney's fees

83. Dr. Smith suffered emotional distress due to the Defendants' negligent hiring and

retention.

84. In addition, Defendants' conduct was grossly negligent, such that they should be

liable for punitive damages and attorney's fees.

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COUNT VII: PRELIMINARY AND PERMANENT INJUNCTION

85. The preceding paragraphs of the Complaint are incorporated as if they were

restated here.

86. 38 Films requests that the Court enter a permanent injunction preventing the

Defendants from re-airing It's Time, selling any copies of It's Time, or any future airing or sales

of any derivate commercial products related to It's Time or Undefeated.

87. 38 Films will succeed on the merits of this litigation.

88. Without the injunction, 38 Films will suffer irreparable injury, as the population's

confusion between Undefeated and It's Time will only increase.

89. The injury to 38 Films outweighs any injury to the Defendants.

The Defendants

have ample films to sell and to show. 38 Films has a film, which the Defendants stole.

90. For the reasons stated in the preceding paragraph, the requested permanent

injunction will not disserve the public interest.

WHEREFORE, Plaintiffs prays for an award of money damages in an amount to be

determined by the finder of fact, together with all attorneys' fees, pre-judgment interest and post-

judgment interest, costs and expenses incurred related to this action, and punitive damages, along

with all further and/or other relief to which they may be entitled at law or in equity.

Plaintiffs

also request that the Court award 38 Films a temporary and permanent injunction forbidding the

Defendants from future airings or sales of It's Time.

Respectfully submitted, this the 31st day of August, 2016.

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OF COUNSEL:

Bradley W. Smith (MS Bar #9834) D. Sterling Kidd (MS Bar #103670) BAKER, DONELSON, BEARMAN CALDWELL & BERKOWITZ, PC One Eastover Center 100 Vision Drive, Suite 400 Jackson, Mississippi 39211 Telephone: (601) 351-8932

Facsimile:

bsmith@bakerdonelson.com

skidd@bakerdonelson.com

(601) 974-8932

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38 FILMS, LLC and DR. CHARLES E. SMITH, JR.

By Their Attorneys,

BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC

BY:

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D. Sterling Kidd

D. Sterling Kidd (MS Bar #103670)