After a review of the filings and judgments, I must say that I see it as only logical for Tess to consider retaining new counsel before amending any further. Here’s why I say this: the original complaint (which is loaded with inappropriately timed and unnecessary allegation bloat) set the tone and scope of this litigation and, in my view, it and it alone created this whole dismissal quagmire. Specifically—I cannot understand why it opens with excessive arguments, talking like this at #6:
"6. Gerritsen is informed and believes, and on that basis alleges, that in and subsequent to 2008, New Line and Katja have been and continue to be shell corporations wholly owned by WB and mere conduits through which WB conducts business. To the extent New Line and Katja continue to transact any business at all, it is at the sole direction and for the sole benefit of WB. Throughout the period 2008 to the present, WB exercised complete management, control, ownership, and domination over New Line and Katja. As such, there has been and is today such a unity of interest and ownership between New Line and Katja, on the one hand, and their parent WB on the other, that the separate personalities of New Line and Katja no longer exist and if their acts are not treated as the acts of WB an inequitable result will follow.”All three entities were already named in the complaint, all three share the same address. Why did attorney Glen Kulik go into this in his initial complaint with hostile language alleging "shell corporation," and "mere conduits" and "shielding from liability," etc. right out the gate? Had WB yet claimed (publicly) that Katja or New Line were NOT shell corporations or mere conduits? Had they even denied they owned the rights to Tess's book? So why bring it up? Why open that door? If they would have been so inclined, the burden would have been on Warner Bros. to explain/deny the relationship between the entities, not on Tess. And at the very least, the initial complaint would not have given WB frivolous ground to argue for dismissal based on a phantom technicality!
Further, in Tess' first amended complaint, after a prolonged rendition of the various names New Line DBA's, we have language like:
"WB has operated under an even larger number of names. The end result is a business structure so complicated that often the individuals who run the studio cannot even keep the relationships and their own multiple titles straight at any given time."Why the bleep is Tess’s own attorney padding his AMENDMENT with street talk that's not even probative at this stage? His second chance to get it right?? He sounds like counsel for Warner Bros.! Why not address the fact that the contract was shuffled around and activated without Tess' knowledge, despite having an "Assignment" Clause, which was blatantly ignored?
It's a good thing these gross errors can still be corrected!
Furthermore, in its initial dismissal, the court acknowledges that Tess has made a plausible pleading to support that the movie “Gravity” is based on her book “Gravity,” but then it subsequently demonstrates all manner of etymological and linguistic failures in reasoning:
"While the court will assume for purposes of this motion that she plausibly pleads the Film was based on her Book, a "literary property” owned by Katja, in that she pleads purported similarities between the two works, and alleges that she and Katja entered into the Contract, she alleges no facts supporting her conclusion that “Katja is controlled by WB and WB is effectively the owner of the motion picture rights in the Book.” Conclusory allegations of control do not give rise to a plausible inference that Katja “transferred” rights to the Film to WB for a “fraudulent purpose.” See Iqbal, 129 S.Ct. at 1949 (“a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”). Because Gerritsen’s fraudulent purpose theory is not supported by factual allegations, the court concludes that she has failed plausibly to plead successor-in-interest liability on this basis."And in its 2nd dismissal, the Court talks like this:
"...the facts Gerritsen plead to show "total control" suggest only that WB, as parent, engaged in routine oversight of its subsidiaries, and provided support for their activities. The court previously concluded that this was not sufficient to state a claim for implied assumption of liabilities." "While such facts might give rise to a plausible inference that WB impliedly assumed Katja's and New Line's liabilities at the time it acquired their assets...the court concludes that Gerritsen has failed adequately to allege an implied assumption of liabilities sufficient to impose successor liability on WB."Is the judge trying the case here? When the facts to be tried have already been firmly established?
Where exactly is this judge setting the bar for "plausible inference" and "sufficient" pleadings? And why? Isn't the judge supposed to determine whether or not issues are alleged that need to be tried? Or is the Court supposed to determine whether or not the allegations are actually true? This is beyond the scope of her purview. Based on the Court's own words (which sound redundantly like those of Warner Bros.), it's clear this judge is plagued with incompetence in reasoning and, in making appropriate distinctions under the law. If Warner Bros. moves to dismiss by denying they had a contract with Tess, isn't that enough to deny their motion and allow the litigation to proceed with discovery??
As I see it, the problem here is two-fold: the tone of the judge's rulings seems fraught with bias that favors Warner Bros. + Tess's attorneys let her down in the initial complaint, either due to incompetence or deliberate sabotage. How can experienced entertainment law attorneys set the stage the way they did with that initial complaint? Are they trying to win, or just rack up billable hours?
The initial complaint against Warner Bros. gave them the ability to assume the position that their movie “Gravity” is not even based on Tess’s book, “Gravity.” And they’re free to make this claim because they know she cannot now claim copyright infringement without contradicting her initial arguments. They are able to fabricate the claim that THEY never had a contract with her, so their movie is an ORIGINAL screenplay, and they have Tess’s own public statements to back them up.
How do we like those legal apples?
I sincerely hope she stays strong and resolute, and takes this to the mat. If I were her, I would promptly motion to remove Judge Morrow from this case, based on her biased characterizations of the allegations (while conceding to facts already alleged) and her clear efforts to prematurely guide this toward dismissal with prejudice. Warner Bros. cannot be allowed to get away with this, whether or not it was intentional, or a structural and time-lapse oversight. They should not legally get to piecemeal this contract, benefiting from the optioned film rights but not having to fulfill the indivisible obligation to its author.
Oh, boy. What goes down sweet in your throat can certainly wind up bitter in your belly. When you get that call from your agent, or whomever, telling you you've just sold the film rights to your book, do you ever think it could wind up here?