United States District Court, E.D. Pennsylvania
For PAUL PICCARI, FRANK KIELB, FKE, INC., Plaintiffs: SIMON ROSEN, LEAD ATTORNEY, LAW OFFICE OF SIMON ROSEN, PHILADELPHIA, PA.
For GTLO PRODUCTIONS, LLC., GTLO, LLC, PAUL HAMMOND, PAUL FARIELLO, Defendants: DAVID J. SHANNON, LEAD ATTORNEY, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, PHILADELPHIA, PA.
GERALD J. PAPPERT, UNITED STATES DISTRICT JUDGE.
This case stems from a break up between members of " one of the greatest tribute bands in the history of the modern rock era" --" Get The Led Out." (Compl. ¶ 20, ECF No. 1.) Plaintiffs seek to recover their share of the profits earned by the band since they were allegedly unilaterally ousted from the group. Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that Plaintiffs have failed to state claims pursuant to the Lanham Act, 15 U.S.C. § 1501 et seq. Defendants also ask the Court to decline to exercise jurisdiction over the remaining state law claims. For the reasons that follow, the motion is granted and the case dismissed.
I. Factual and Procedural Background
In 2002, Plaintiff Paul Piccari (" Piccari" ) conceived the idea to form a band dedicated to playing the music of Led Zepellin, one of the world's most famous rock and roll bands. ( Id. ¶ 9A.) Piccari named the group " Get The Led Out," and the band was comprised of Piccari and Defendants Paul Hammond (" Hammond" ) and Paul Fariello (" Fariello" ). ( Id. ) Since the band's inception in 2002, Picarri has played an " indelible role in the continued success of the musical group" as a " musician, arranger, performer, and valuable provider of creative and business advice." ( Id. ¶ ¶ 10, 11.) Plaintiff FKE, Inc. (" FKE" ), through Plaintiff Frank Kielb (" Kielb" ), likewise played an indelible role as the band's " personal manager, business manager, business advisor, and consultant." ( Id. ¶ 22.) By 2003, " Get The Led Out" was performing live at venues in Philadelphia and West Chester, Pennsylvania. ( Id. ¶ 9B.)
Prior to commencing live performances in 2003, the parties orally agreed that Piccari would receive a 22.5 percent proprietary interest and FKE a 10 percent proprietary interest in " Get The Led Out" as well as the gross revenue related to those interests. ( Id. ¶ 9C.) The parties also agreed that Piccari would receive his fair share of 22.5 percent of the gross profits earned by " Get The Led Out" and FKE would receive 10 percent of gross profits earned by " Get The Led Out." ( Id. ¶ ¶ 12, 19.) Both Piccari and Kielb are co-owners
of the trade name, trade dress, and trademark " Get The Led Out." ( Id. ¶ ¶ 10, 21.)
The Defendants forced Piccari out of the band and, on October 24, 2011, they unilaterally terminated FKE and Kielb. ( Id. ¶ ¶ 13, 24.) " Since their ouster, Plaintiffs have not received, and defendants refuse to make, any payments based on their interests in the band. ( Id. ¶ ¶ 15, 26.)
Plaintiffs allege breach of oral contract, promissory estoppel, unjust enrichment, breach of fiduciary duty, breach of implied-in-fact agreement, accounting, constructive trust, and violations of the Lanham Act. Defendants contend that Plaintiffs have failed to state a claim under the Lanham Act and ask the Court to decline to exercise supplemental jurisdiction over the Plaintiffs' state law claims. The Court ...