Murray v. The Carsey-Werner Company et al

Filing 15

MEMORANDUM AND ORDER: As all of plaintiff's claims would be precluded under res iudicata, his motion for advance approval to file the instant complaint is denied and his amended complaint is dismissed. Although plaintiff paid the filing fee to commence this action, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma nauneris status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Carol Bagley Amon on 1/24/2017. (Fwd for judgment) (Fernandez, Erica)

FILED

IN Cl.ERK'fl OFl'ICE
U.S. [)IST!".,;CT COl.ISl."T E.D.N.V.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------)(
HWESU S. MURRAY

*

JAN242017

*

BROOKLYN OFFICE
NOT FOR PUBLICATION
MEMORANDUM & ORDER

Plaintiff
- against -

16-CV-4688 (CBA)
THE CARSEY-WERNER COMPANY,
A California Partnership; MARCIA CARSEY;
THOMAS WERNER; CARSEY-WARNER LLC, A
California Limited Liability Company; THE
CARSEY-WERNER COMPANY, LLC, A
California Limited Liability Company; CARSEYWERNER PRODUCTIONS, LLC, A California
Limited Liability Company; CARSEY-WERNER
DISTIBUTION, LLC, A California Limited Liability
Company; and CARSEY- WERNERMANDABACH, LLC, A California Limited
Liability Company,
Defendants.

---------------------------------------------------------------)(
AMON, United States District Judge:
On August 22, 2016, plaintiffHwesu S. Murray, proceeding prose, filed a complaint, along
with a request for advance approval to file. (D.E. # 1.) Plaintiff also paid the requisite filing fee
to commence this action. (D.E. dated August 23, 2016.) He filed an Amended Complaint on
October 21, 2016. (D.E. # 5 ("Am. Comp!.").) For the reasons set forth below, approval to file is
denied and plaintiffs amended complaint is dismissed.
BACKGROUND 1
In 1980, plaintiff submitted an idea for a television show to an assistant to Brandon
Tartikoff, an executive at National Broadcasting Co. Inc. ("NBC"), where plaintiff was then

1

The following factual allegations are taken from the Amended Complaint, plaintiff's Affirmation in support of his
request for advance approval to file this action, plaintiffs Memorandum of Law in support of his request, and the
exhibits attached to these documents. The factual allegations are assumed to be true for purposes of this Order.

employed. (D.E. # 5-1 at 62 2 .) The proposal was called "Father's Day," and suggested a halfhour situation comedy involving a middle-class Black family to star Bill Cosby. (Id. at 65.) At
Tartikoffs assistant's request, plaintiff submitted an expanded proposal on November 1, 1980.
(Id. at 64.) The proposal suggested a family structure including four children with another child
away at college who would make periodic appearances. (Id. at 63-64.) The proposed show would
"combine humor with serious situations in a manner similar to that of the old Dick Van Dyke
Show," and would "involve situations in which the father's traditional views of success and the
roles of fathers, mothers, and children are challenged by a new set of rules and ideas." (Id. at 66.)
It suggested: "With tongue-in-cheek humor, [the father] re-evaluates middle-class American life,

with a Black perspective, and adjusts his perception of the American dream in light of new
realities." (Id.) On November 21, 1980, the studio returned the proposal to plaintiff with the
explanation that "we are not interested in pursuing [its] development at this time." (Id. at 69.) In
the fall of 1984, NBC began to air The Cosby Show, a television program about a Black family,
with two professional parents, four children at home and one away in college, and starring Bill
Cosby.

(Id. at 70-71.)

The Cosby Show was produced by defendant The Carsey-Werner

Company, which held licensing agreements with NBC. (Am. Comp!.'\['\[ 14, 74--75; D.E. # 5-1 at
70.)
On September 30, 1985, plaintiff commenced a lawsuit in the United States District Court
for the Southern District of New York against NBC, Brandon Tartikoff, and some of the defendants
in the instant case: The Carsey-Werner Company, Marcia Carsey, and Thomas Werner.

(Am.

Comp!. '\['\[ 6, 10-11, 120.) The complaint alleged that the idea for The Cosby Show was plaintiffs
"Father's Day," and that Tartikoff and NBC deliberately used plaintiffs idea, but decided to

2

As the document's pages are not consecutively paginated, the Court refers to the page numbers provided on the
Court's electronic filing system, ECF.

2

produce it without him. (D.E. # 5-1at74.) It alleged claims pursuant to 42 U.S.C. §§ 1981, 1982,
and 1985(3); the Lanham Act, 15 U.S.C. § l 125(a); and the Racketeer Influenced and Corrupt
Organizations Act. (See id. at 58.)
All of the defendants were initially represented by the same counsel and joined in an answer
to the complaint which categorically denied plaintiffs allegations that The Cosby Show was
modeled on plaintiffs proposal for "Father's Day." (Am. Comp!. iJ 161.) In particular, the answer
claimed that no NBC employee related the details of "Father's Day" to Tartikoff prior to the
litigation, (D.E. # 5-2 at 69 3); asserted that the specific details for the family structure in The Cosby
Show were based on details of Bill Cosby's own personal life and were not modeled on plaintiffs
proposal, (id. at 70-72); and denied that any conduct by defendants supported a claim for damages,
(id. at 78-82).
The defendants' initial request to move for dismissal was denied, and the parties
commenced extensive discovery. (Am. Comp!. iii! 167, 169-71.) Beginning in March, 1986, the
Carsey-Werner defendants were represented by separate counsel. (Id.

iJ 172.) The other two

defendants, NBC and Tartikoff, moved for summary judgment on November 24, 1986 on the
ground that plaintiffs idea for the show was not protected under New York law because it lacked
novelty. (Id. iii! 43, 47, 162, 179.)
The 1985 Carsey-Werner defendants joined that motion on November 26, 1986, while also
asserting an independent basis for their dismissal. (D.E. # 5-2 at 98-100.) Counsel for Carsey and
Werner indicated a separate ground for dismissal: that they had never heard of plaintiff prior to the
litigation and had never seen his proposal for "Father's Day." (Am. Comp!. iii! 176, 180, 182, 184,
186.) Thereafter, Carsey and Werner each submitted an affidavit stating that The Carsey-Werner

3

As the document's pages are not consecutively paginated, the Court refers to the page numbers provided on the
Court's electronic filing system, ECF.

3

Company was the executive producer for The Cosby Show and that they had never heard of
plaintiff or his proposal prior to September 1984. (D.E. # 5-2 at 56-59.)
Plaintiff asserts that attorneys for Carsey and Werner in the Murray v. National
Broadcasting Co., Inc., No. 85-CV-7675 (MGC) (S.D.N.Y. 1987) (referred to herein as "85-CV7675") litigation represented in open court on January 16, 1987, before the late Judge Miriam
Cedarbaum, that defendants disclaimed any credit for the idea for The Cosby Show. (Am. Comp!.

iiii 17, 204.) Plaintiff recalls Judge Cedarbaum stating "They're not claiming anything," which he
believed to be her opinion for why the Carsey-Werner defendants should have then been dismissed
from the lawsuit. (Id.

ii 206.) "Plaintiff recalls that the representation by [the Carsey-Werner

defendants' attorney] Mr. Eizenman to the Court and to [plaintiffs counsel] Mr. Santora, that the
original Carsey-Werner defendants did not then, and would not in the future, assert any claim to
the idea for 'The Cosby Show,' was a major factor that ultimately led to Plaintiffs agreement ...
as against the original Carsey-Werner defendants." (Id. ii 207.) Plaintiff recalls Mr. Santora stating
that if evidence arose indicating that the Carsey-Werner defendants claimed credit for the idea for
The Cosby Show, then he would seek reinstatement of those defendants. (Id.

iiii 208, 228.)

"Plaintiff recalls that Judge Cedarbaum stated, either expressly or in words to the effect, that if any
evidence arose indicating that the original Carsey-Werner defendants asserted any claim to the
idea for The Cosby Show then she would reinstate them as defendants." (Id. ii 209.) No transcripts
or other documentary evidence of this court proceeding are presented. "Plaintiff recalls that Judge
Cedarbaum's statement that she would reinstate the original Carsey-Werner defendants as
defendants if any evidence arose indicting that they asserted any claim for the idea for The Cosby
Show was a significant factor in Plaintiffs decision to agree to the dismissal of his 1985 Complaint
... as against the original Carsey-Werner defendants." (Id.

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ii 229.)

On February 4, 1987, plaintiff and The Carsey-Werner Company, Marcia Carsey, and
Thomas Werner entered into a stipulation of dismissal, with prejudice, that was approved on
February 23, 1987 by Judge Cedarbaum. (Id. iii! 231-33, 259; D.E. # 5-1at56; D.E. # 5-2 at 5255.) The stipulation stated that "the above-entitled action, and each and every claim asserted
therein, is hereby dismissed with prejudice only as against defendants The Carsey-Werner
Company, Marcia Carsey and Thomas Werner" and "final judgment of dismissal with prejudice
shall be entered in favor of the Carsey-Werner defendants against plaintiff." (D.E. # 5-2 at 52.)
The stipulation did not itemize "each and every claim" it dismissed, nor include any admissions
of fact.
On July 15, 1987, Judge Cedarbaum granted NBC and Tartikoffs motion for summary
judgment, "based upon a ... finding of lack of sufficient novelty of the idea that was contained in
the proposal that Plaintiff submitted to NBC." (Am. Comp!. if 43; see also D.E. # 1-3 at 207 4.) On
July 22, 1987, the court entered final judgment against plaintiff. (D.E. # 1-3 at 207.) Plaintiffs
appeal to the Court of Appeals was dismissed in a 2-1 decision on April 18, 1988, and his request
for rehearing was denied on June 1, 1988. (Id.) On November 14, 1988, the United States Supreme
Court denied certiorari. (Id.)
In 1993, plaintiff sought to reopen the case based on Apfel v. Prudential Bache Securities,
81 N.Y.2d 470 (N.Y. 1993) (holding that a showing of novelty was not required to validate a
contract where a proposal was found to have value). (Id. at 208.) Judge Cedarbaum denied the
motion for reconsideration. See Murray v. Nat'! Broad. Co., No. 85-CV-7675 (MGC), 1993 WL
485584, at* 1 (S.D.N.Y. Nov. 24, 1993).

4

As the document's pages are not consecutively paginated, the Court refers to the page numbers provided on the
Court's electronic filing system, ECF.

5

Meanwhile, in state court, plaintiff brought claims against NBC and Tartikoff on May 30,
1989. (See D.E. # 1-3 at 209.) The defendants moved in the original federal action to enjoin
plaintiff from prosecuting the new state court action, and Judge Cedarbaum issued a partial
permanent injunction on August 31, 1989. See Murray v. Nat'! Broad. Co., 718 F. Supp. 249,
250-51 (S.D.N. Y. 1989). Plaintiff filed an amended complaint to reassert the remaining claims in
state court, but the state court granted the defendants' motion to dismiss all of the claims under the
doctrine ofres judicata. Murray v. Nat'! Broad. Co., 1990 WL 384967, at*! (N.Y. Sup. Ct. Aug.
14, 1990). The Appellate Division affirmed on December 5, 1991, 576 N.Y.S.2d 578 (N.Y. App.
Div. 1991), and motion for reargument was denied on February 6, 1992 (D.E. # 1-3 at 210). On
March I 0, 1992, the First Department imposed costs and enjoined further motions. (D.E. # 1-3 at
210.) The Court of Appeals dismissed the appeal on May 12, 1992. 79 N.Y.2d 1036 (N.Y. 1992).
Plaintiff brought a new suit in the New York Supreme Court, Westchester County, Index No.
8632/92, against NBC, on June 15, 1992, which was dismissed on January 25, 1993 under the
doctrine ofres judicata. (D.E. # 1-3 at 211.) On April 24, 1995, the New York Appellate Division,
Second Department, affirmed; directed the Supreme Court, Westchester County, to enter a
judgment declaring that plaintiff has no right, title, or interest in the television show known as The
Cosby Show and its spinoff A Different World; and enjoined plaintiff from instituting any new
suit related to rights in The Cosby Show without first receiving advance approval for leave to file.
See Murray v. Nat'! Broad. Co., 626 N.Y.S.2d 810, 811-13 (N.Y. App. Div. 1995). On July 24,
1995, the Appellate Division imposed costs of$10,000 on plaintiff. Murray v. Nat'! Broad. Co.,
629 N.Y.S.2d 802 (N.Y. App. Div. 1995). The Court of Appeals dismissed plaintiffs remaining
motions and appeals on February 20, 1996. Murray v. Nat'! Broad. Co., 87 N.Y.2d 966 (N.Y.
1996).

6

On May 19, 2002, The Cosby Show: A Look Back aired on NBC. (Am. Comp!. iJ 19.) On
August 24, 2010, the feature was posted to YouTube. (Id. iJ 20). In the program, Werner claimed:
"For all its success, The Cosby Show almost didn't happen. When Marcy and I initially pitched it
to the networks, after developing the idea with Bill, it was summarily passed on by all three
networks." (Id. iJ 19.)
On March 19, 2008, plaintiff submitted a motion to the United States District Court for the
Southern District of New York requesting permission to reopen 85-CV-7675 in order to seek a
declaratory judgment against the Carsey-Werner defendants. (D.E. # 1-3 at 12.) The motion was
returned to him by the clerk's office. (Id. at 13.) Informed by the staff attorneys that he could
submit a new action, he did so on September l 0, 2008, and, in conformity with the New York
Appellate Division's April 24, 1995 injunction requiring him to obtain advance approval from any
court before which he intended to assert claims related to any rights in The Cosby Show, he
requested advance approval.

(Id.) The papers were returned "under the direction of Judge

Cedarbaum, who declined to rule." (Id.)
On July 25, 2011, plaintiff requested advance approval to file a complaint with the Supreme

'
Court of New York, County of New York, but that request was denied on August 1, 2011. (Id. at
13-14, 68.) On August 2, 2011, plaintiff requested leave to appeal from the Court of Appeals,
First Department, and that petition was denied. (Id. at 14, 70.)
In the instant complaint, plaintiff alleges that Werner's statement in the May 19, 2002
broadcast is at odds with Carsey and Werner's position in the 1985 lawsuit. Plaintiff now claims
that the stipulation and settlement "was facially silent as to my Rights against the original CarseyWerner defendants." (D.E. # 1-3 at 24-25.) He argues that the February 4, 1987 stipulation and
February 23, 1987 final judgment indicated that the Carsey-Werner defendants failed to contest

7

the allegations in the 1985 Complaint, and thus served "as admissions of fact made by the original
Carsey-Werner defendants" as to plaintiffs rights in The Cosby Show. (Am. Comp!. ii 130.) He
asserts: "[b ]y the acts of signing and submitting their affidavits for the dismissal of Plaintiff's 1985
Complaint, . . . Defendants Carsey and Werner, for the original Carsey-Werner defendants
collectively, essentially conceded Plaintiff's Rights and facts regarding The Cosby Show," (id.

ii 237), and "made formal judicial admissions that, as between Hwesu S. Murray and the original
Carsey-Werner defendants as competitors ... , Plaintiff Hwesu S. Murray is the uncontested
developer of the idea for The Cosby Show ... [and] owns the uncontested Rights to The Cosby
Show," (id. ii 239). He further asserts that "the formal judicial admission of Defendant Carsey and
Defendant Werner are binding ... and each constituted an act of a party done in the course of a
judicial proceeding, which dispensed with the production of evidence by conceding, for the
purposes of the litigation, the truth ofa fact alleged by the adversary." (Id.

ii 241.)

Plaintiff now asserts that the February 4, 1987 stipulation "was founded upon the original
Carsey-Warner defendants' disclamation of the idea for The Cosby Show ... , the absence of
opposition from the original Carsey-Werner defendants to plaintiff's allegations of Rights, facts
and relief regarding The Cosby Show ... , and judicial admissions made by the original CarseyWerner defendants regarding plaintiff's allegations of Rights and facts regarding The Cosby
Show." (Id. ii 17.) Plaintiff purports to explain the meaning of the language used in the stipulation.
He states: "As used in the Murray/Carsey-Werner Stipulation ... the phrase, 'in favor of the
Carsey-Werner defendants against plaintiff,' means in favor of the original Carsey-Werner
defendants' representation of themselves as non-competitors against the plaintiff regarding the
Rights to The Cosby Show based upon the developed idea for The Cosby Show." (Id.

ii 273.) He

now insists that the February 4, 1987 stipulation "thereby eliminated the original Carsey-Werner

8

defendants as competitors against the Plaintiff regarding the developed idea for The Cosby Show."
(Id. ii 28.)
He asserts that the stipulation was a "bargain between the plaintiff and the original CarseyWerner defendants, which, in exchange for the dismissal of the plaintiffs 1985 Complaint as
against the original Carsey-Werner defendants, gave to Plaintiff against the original CarseyWerner defendants, as competitors regarding the developed idea for The Cosby Show, the
uncontested Rights, (including the Rights of ownership of The Cosby Show and Rights of Relief
as set forth in plaintiffs 1985 Complaint), to The Cosby Show as the uncontested developer of the
idea for The Cosby Show." (Id.) Thus, plaintiff asserts that "Under New York law, Hwesu S.
Murray's bargain with Carsey-Werner in the Murray/Carsey-Werner stipulation on the Complaint,
gave to Hwesu S. Murray, (in exchange for Carsey-Werner's dismissal), the uncontested rights to
The Cosby Show that are based upon the underlying developed idea for The Cosby Show as
between Hwesu S. Murray and Carsey-Werner." (D.E. # 5-2 at I.)
Plaintiff further asserts that the subsequent July 8, 1987 Decision and Order and the July
22, 1987 final judgment "had no bearing whatsoever upon the statutory determination ... final
adjudication and judicial settlement of Plaintiffs uncontested Rights against the original CarseyWerner defendants." (Am. Comp!.

ii 46.) Moreover, he states that Werner's statement broadcast

on May 19, 2002 was a claim of credit for the idea to The Cosby Show and "cut their link to NBC's
lack of novelty defense against the Plaintiff." (Id.

ii 47.)

Plaintiff argues that Werner's subsequent claim in the May 19, 2002 broadcast that he and
Carsey, along with Bill Cosby, developed and pitched the idea to the networks was an assertion of
credit for the idea for The Cosby Show and that it "triggered Plaintiffs uncontested, finally-

9

adjudicated and judicially-settled Rights against them under the February 23, 1987 final
judgment." (Id. ifif 26, 50.) Plaintiff asserts that through Werner's statement
the original Carsey-Werner defendants took credit for themselves, "(with
Bill)," for developing, and then pitching to NBC ... the idea for what
became known as The Cosby Show; ... firmly established themselves under
the February 23, 1987 Final Judgment on Plaintiff Hwesu S. Murray's 1985
Complaint as retro-active competitors against the Plaintiff for credit for the
developed idea for The Cosby Show; revived the case or controversy
between themselves and Plaintiff Hwesu S. Murray ... ; revealed that they
obtained the plaintiffs agreement to the dismissal of plaintiffs 1985
complaint as against them by making a false and/or fraudulent
representation that they would not assert any claim to The Cosby Show; ...
and triggered the enforceability of the February 23, 1987 final judgment on
Plaintiffs 1987 complaint by the Plaintiff as against the original CarseyWerner defendants as competitors regarding the developed idea for The
Cosby Show.
(Id. if 26.) "By publicly stating [that they developed the idea for The Cosby Show], Carsey Werner
revived the controversy between themselves and Hwesu S. Murray, and triggered Hwesu S.
Murray's Uncontested Rights against themselves under the dispositive Murray/Carsey-Werner
Final Judgment on the [1985] Complaint." (D.E. # 1-2 at 88.)
Accordingly, plaintiff claims he is entitled "to enforce the February 23, 1987 final
judgment on the 1985 Complaint against the original Carsey-Werner defendants as an uncontested
money judgment." (Am. Comp!. if 48.) Plaintiff cites New York's Civil Procedure Laws and
Rules§ 5011 and New York state case law for the principle that "a judgment 'determines the rights
of the parties."' (D.E. # 1-2 at 2.) He also cites federal cases where defendants failed to answer
or otherwise defend themselves and default judgments were entered "in the absence of any
opposition from Defendants." (Id. at 12-13.) He argues he is entitled "to recover uncontested
monetary relief [including] compensatory damages, punitive damages, and, inter alia, all profits
and revenue derived by the original Carsey-Werner defendants from The Cosby Show and from
its derivative spin-off, A Different World." (Am. Comp!. if 49.) He argues that he "is entitled to
10

the relief set forth in the 1985 Complaint as against the original Carsey-Werner defendants,"
including millions of dollars in damages, and injunctive and declaratory relief. (Id. '1!'1! 322-24,
402.)
Plaintiff also asserts claims against defendants under trademarks provisions of the Lanham
Act and New York's Unfair Competition Act. (Id. '1!'1! 47, 330-31.) He alleges that the original
dismissal of his 1985 case was "a result of the original Carsey-Werner defendants' fraudulent
concealment of their fraudulent representation." (Id. '1! 337.) He alleges that Werner's subsequent
public statements about the development of the idea for The Cosby Show was a "false or
misleading description of fact" "which is likely to cause confusion, or to cause mistake, or to
deceive, or to give the public a false impression as to the origin of The Cosby Show ... in violation
of 15U.S.C.§I125(a)." (D.E. # 5-1at22.) He states: "the original Carsey-Werner defendants'
August 24, 2010 claim . . . falls under the final adjudication and judicial settlement of the
Murray/Carsey-Werner Final Judgment ... as though it were made prior to the filing of the 1985
Complaint's Lanham Act Claims." (Id. at 24.) He seeks punitive damages of$100,000,000 for
each alleged violation of the Lanham Act. (Id. at 38, 44, 140-41.)
DISCUSSION
Leave to file the instant action is denied, because all of plaintiffs claims are precluded by
the doctrine of res judicata. A district court has the power to dismiss pro se complaints sua sponte
on res judicata grounds. Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993) ("The failure ofa
defendant to raise res judicata in answer does not deprive a court of the power to dismiss a claim
on that ground" sua sponte.); see also Rollock v. LaBarbera, 383 F. App'x 29, 30 (2d Cir. 2010)
(summary order) (affirming district court's sua sponte dismissal of complaint on res judicata
grounds). Res judicata bars subsequent litigation if: "(!) the previous action involved an

11

adjudication on the merits; (2) the previous action involved the plaintiffs or those in privily with
them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the
prior action." Monahan v. N.Y.C. Dep't ofCorrs., 214 F.3d 275, 285 (2d Cir. 2000).
"[O]nce a final judgment has been entered on the merits of a case, that judgment will bar
any subsequent litigation by the same parties or those in privily with them concerning the
transaction, or series of connected transactions, out of which the first action arose." Maharaj v.
Bankamerica Corp., 128 F .3d 94, 97 (2d Cir. 1997) (internal quotation marks and citation omitted).
"Even claims based upon different legal theories are barred provided they arise from the same
transaction or occurrence.

Res judicata applies even where new claims are based on newly

discovered evidence, unless the evidence was either fraudulently concealed or it could not have
been discovered with due diligence." L-Tec Elecs. Com. v. Cougar Elec. Org., Inc., 198 F.3d 85,
88 (2d Cir. 1999) (internal quotation marks and citations omitted).
The modern conception of privily, in the res judicata context, applies when a defendant has
"a sufficiently close relationship to the original defendant to justify preclusion." Central Hudson
Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995); see also
Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634, 640 (2d Cir. 1987) ("[A] finding of
privily ... depends on whether, under the circumstances, the interests of the [parties] were
adequately represented [in the earlier action]."); Malcolm v. Bd. of Educ., 506 F. App'x 65, 68 (2d
Cir. 2012) (dismissing claims against defendants who were agents or employees of the original
defendant); Akhenaten v. Najee, LLC, 544 F. Supp. 2d 320, 329-30 (S.D.N.Y. 2008) (finding
privily among defendants in a trademark infringement case where defendants shared common
interest in finding that plaintiff had no rights in the mark); Tibbetts v. Stempel, 354 F. Supp. 2d
137, 148 (2005) ("Generally, an employer-employee or agent-principle relationship will provide

12

the necessary privily for claim preclusion with respect to matters within the scope of the
relationship, no matter which party is first sued." (quoting 18 Moore's Federal Practice 3d §
13 l.40[3][fl (Matthew Bender ed.))).
In this case, plaintiff has acknowledged that the dispute as to who developed the idea for
The Cosby Show is the same underlying issue that he litigated in his 1985 lawsuit in the Southern
District of New York and subsequent state court actions. As in his original complaint in 85-CV7675, he also raises these claims under the Lanham Act and New York state laws. The CarseyWerner defendants in the instant action overlap with and are in privity with the defendants in 85CV-7675.

The Carsey-Werner defendants had license agreements with NBC.

They jointly

defended the prior lawsuit in its initial stages. Their interests overlap completely with the interests
of the defendants in the prior suit: the common interest for all defendants was whether plaintiff has
enforceable rights in The Cosby Show. That issue was litigated to its conclusion.
As to Carsey, Werner, and The Carsey-Werner Company, the issue was first resolved when
plaintiff agreed to dismiss all claims as to them. The stipulation is clear: plaintiffs lawsuit
docketed as 85-CV-7675 and "each and every claim asserted therein, is hereby dismissed with
prejudice" and "final judgment of dismissal with prejudice shall be entered in favor of the CarseyWerner defendants against plaintiff." (See D.E. # 5-2 at 52.) The defendants made no admissions
of fact or otherwise conceded any of plaintiffs claims. Thereafter, in granting NBC's motion for
summary judgment, the court found that plaintiffs idea for "Father's Day" lacked novelty and
thus did not confer any protectable rights in The Cosby Show. Although separately dismissed
from the case, the Carsey-Werner defendants had previously joined the NBC defendants' motion
to dismiss and had adopted the lack-of-novelty argument. Plaintiff cannot now plausibly claim
that the Carsey-Werner defendants did not share the NBC defendants' interest in adjudicating the

13

rights to The Cosby Show. The District Court for the Southern District of New York previously
determined the rights of the parties as to ownership of the idea for The Cosby Show. Accordingly,
any new action related to plaintiffs claims to rights in The Cosby Show would be precluded from
relitigation under res judicata, and thus, this action will not be accepted for filing.
Plaintiff seeks to avoid the preclusive effect of the 1987 judgments by suggesting that the
2002 broadcast in which Werner allegedly claimed credit for the concept behind The Cosby Show
constituted a separate and ongoing violation under the Lanham Act. However, the February 23,
1987 stipulation finally dismissed all of plaintiffs claims against the Carsey-Werner defendants,
and the July 15, 1987 decision determined that plaintiff had no enforceable rights in The Cosby
Show. Werner's alleged claim of credit in 2002 does not alter the final adjudication of plaintiffs
claim of credit nor void the court's finding that the lack of novelty in plaintiffs idea was fatal to
his claims.
Finally, plaintiff seeks to avoid the operation of res judicata by styling the instant action as
arising under the Declaratory Judgment Act as an enforcement of a previous "Final Judgment."
However, the judgment that plaintiff seeks to enforce is the February 23, 1987 judgment approving
the February 4, 1987 stipulation, in which all of plaintiffs claims against the Carsey-Werner
defendants were dismissed with prejudice. Plaintiff now argues that the settlement was "facially
silent" as to his claims and that by stipulating to dismissal the defendants left his claims as
"uncontested" "admissions of fact." To the contrary, plaintiffs 1985 complaint was clear in its
claim to credit for the idea behind The Cosby Show, and the Carsey-Werner defendants vigorously
defended themselves against the lawsuit. All of the defendants categorically denied plaintiffs
claims in their joint answer, the Carsey-Werner defendants joined the NBC defendants' motion to
dismiss on the ground that plaintiffs ideas lacked novelty, and Carsey and Werner each submitted

14

an affidavit claiming no prior knowledge of plaintiffs proposal for "Father's Day" before
developing the show. Plaintiffs self-serving claim that counsel for the original Carsey-Werner
defendants suggested that they did not claim credit for the idea is not supported by either their
written affidavits or the stipulation of settlement. Plaintiffs factual allegations clearly were not
"uncontested." Ultimately, plaintiff agreed to dismiss those defendants from the lawsuit, with
prejudice, and all claims against them were dismissed. The final judgment indeed determined the
rights of the parties: plaintiff gave up all claims against the Carsey-Werner defendants, thus
releasing defendants from any liability. There is no favorable judgment for plaintiff to enforce.
Accordingly, the Court will not permit plaintiff to proceed on this claim.
CONCLUSION

As all of plaintiffs claims would be precluded under res judicata, his motion for advance
approval to file the instant complaint is denied and his amended complaint is dismissed. Although
plaintiff paid the filing fee to commence this action, the Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma
pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
RDERED.
Dated: [ ; JO
, 2017
ooklyn, New York

s/Carol Bagley Amon

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