Titanic Lawsuit Proceeds after Dismissal of Overseas Defendants Based on Rejection of Reverse Alter Ego Theory
This is an update to our prior post on the filing of the case to enjoin and recover damages against an individual and group of entities for copying a complex exhibition on the Titanic. The prior post can be accessed here.
On October 17, 2013, Judge Duffey of the Northern District of Georgia entered an Opinion and Order resolving defendants’ motions to dismiss. Practical Law posted a detailed review of the Court’s ruling with regard to the overseas defendants, particularly with regard to the reverse alter ego theory advanced by plaintiffs (collectively referred to as “RMST”). The information contained in that link is not repeated here.
The Court also addressed the other claims asserted by RMST. The Court permitted the Lanham Act claim of Trade Dress Infringement to proceed based on allegations that: 1) the product design of the two products is confusingly similar; 2) the features of the product design are primarily non-functional; and 3) the product design is inherently distinctive or has acquired secondary meaning.
The Court ruled that RMST’s claim of conversion must be dismissed because “Plaintiffs fail to identify any intangible property that is outside of the copyright laws.” While the Court noted that a claim for conversion of tangible property is not preempted by the Copyright Act, RMST did not sufficiently allege facts to show a conversion of tangible property.
The Court dismissed RSMT’s claims for conversion and unjust enrichment as superseded by the Georgia Trade Secrets Act. However, the Court found that RSMT’s fraud and fraudulent inducements claims were not superseded and were further sufficient to meet the pleading particularity requirements of Fed. Rule Civ. P. 9(b). The Court noted that a promise about a future event “generally cannot form the basis of a fraud claim” . . .but “promises made without a present intent to perform” are an exception. See Mecca Const., Inc. v. Maestro Investments, LLC, 320 Ga. App. 34, 42, 739 S.E. 2d 51, 59 (Ga. App. 2013).
The Court, with some apparent reluctance, let a breach of contract claim for violation of a promise of confidentiality continue over a Statute of Frauds objection that it was not required to be performed within one year. The Court noted that RMST will not ultimately be able to recover on both its contractual and fraud theories.
The Court allowed additional discovery on whether or not Imagine-Nevada was subject to personal jurisdiction in Georgia, but found both jurisdiction and venue proper for all the other non-overseas defendants.
The case is RMS Titanic, Inc. and Premier Exhibitions, Inc. v. Thomas Zaller, Imagine Exhibitions, Inc., and Imagine Exhibitions PTE, Ltd., No. 1:13-cv-625-WSD, filed 2/26/13 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and has been assigned to U.S. District Judge William S. Duffey, Jr. The “Opinion and Order” was filed as Document 33 on the Docket on October 17, 2013.