You are on page 1of 38

JS44C/SDNY

REV. 4/2014
CIVIL COVER SI
The JS-44 civil cover sheet and the information contained herein aAprTgfce nor^pjalelfent the filing am
pleadings or other papers asrequired by law, except asprovided by local rule's of courfr lhH form, approvedi
Judicial Conference ofthe United States inSeptember 1974, is required foruse ofthe Clerk of Court forthe pilose
initiating the civil docket sheet
PLAINTIFFS
Andrea Magder
- :r f\
U V
fflffl
DEFENDANTS .OV/l 2 w2014
Belton Lee; Madhattan FilmCompany Global, LLC; Christopher Bongime;
Marc Jacobson, P.C.; Marc Jacobson; Dining With Alex, LLC
ATTORNEYS (FIRM NAME, ADDRESS, ANDTELEPHONE NUMBER
ATTORNEYS (IF KNOWN)
Sam P. Israel,
1 Liberty Plaza, 35th Floor
New York, NY 10006
646-787-9880 H
CAUSE OFACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)
(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Copyright Infringement of screenplay 17 U.S.C. Section 101 et. seq.
Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? Nc&esQjudge Previously Assigned
Ifyes, was this case Vol. fj Invol. Dismissed. No fj Yes fj If yes, give date.
No 0 Yes
NATURE OF SUIT
& Case No.
IS THIS AN INTERNATIONAL ARBITRATION CASE?
(PLACEAN[x] INONEBOXONLY)
TORTS
ACTIONS UNDER STATUTES
CONTRACT PERSONAL INJURY
[ ] 310 AIRPLANE
[ ]315 AIRPLANE PRODUCT
LIABILITY
[ ] 320 ASSAULT, LIBEL &
SLANDER
[ ] 330 FEDERAL
EMPLOYERS'
LIABILITY
[ ] 340 MARINE
[ ] 345 MARINE PRODUCT
LIABILITY
[ l 350 MOTOR VEHICLE
[ J355 MOTOR VEHICLE
PRODUCT LIABILITY
( ]360 OTHER PERSONAL
INJURY
[ ] 362 PERSONAL INJURY -
MED MALPRACTICE
PERSONAL INJURY
[ ] 367 HEALTHCARE/
PHARMACEUTICAL PERSONAL , j 625 DRUG RELATED
INJURY/PRODUCT LIABILITY
[ ] 365 PERSONAL INJURY
PRODUCT LIABILITY . , KQnOTNCB
[ ]368 ASBESTOS PERSONAL 1!"OI HbK
INJURY PRODUCT
LIABILITY
PERSONAL PROPERTY
[ ] 370 OTHER FRAUD
[ ]371 TRUTH INLENDING
FORFEITURE/PENALTY
[]110
[]120
[]130
[]140
[]150
[]151
[]152
[1153
[]160
[J 190
[]195
[]196
INSURANCE
MARINE
MILLER ACT
NEGOTIABLE
INSTRUMENT
RECOVERY OF
OVERPAYMENT &
ENFORCEMENT
OF JUDGMENT
MEDICARE ACT
RECOVERY OF
DEFAULTED
STUDENT LOANS
(EXCL VETERANS)
RECOVERY OF
OVERPAYMENT
OF VETERAN'S
BENEFITS
STOCKHOLDERS
SUITS
OTHER
CONTRACT
CONTRACT
PRODUCT
LIABILITY
FRANCHISE
REAL PROPERTY
[ ] 380 OTHER PERSONAL
PROPERTY DAMAGE
[ ]385 PROPERTY DAMAGE
PRODUCT LIABILITY
PRISONER PETITIONS
[ ] 463 ALIEN DETAINEE
[ ] 510 MOTIONS TO
VACATE SENTENCE
28 USC 2255
[ ] 530 HABEAS CORPUS
[ ] 535 DEATH PENALTY
] 540 MANDAMUS &OTHER
PRISONER CIVIL RIGHTS
[ ] 550 CIVIL RIGHTS
[ ] 555 PRISON CONDITION
[ ] 560 CIVIL DETAINEE
SEIZURE OF PROPERTY
21 USC 881
LABOR
[ ] 710 FAIR LABOR
STANDARDS ACT
[ ]720 LABOR/MGMT
RELATIONS
[ ]740 RAILWAY LABOR ACT
[ l 751 FAMILY MEDICAL
LEAVE ACT (FMLA)
[ ]790 OTHER LABOR
LITIGATION
[ ]791 EMPL RET INC
SECURITY ACT
IMMIGRATION
[ ]462 NATURALIZATION
APPLICATION
( ] 465 OTHER IMMIGRATION
ACTIONS
[]210
[ ]220
[ ]230
[] 240
[]245
[ ]290
LAND
CONDEMNATION
FORECLOSURE
RENT LEASE &
EJECTMENT
TORTS TO LAND
TORT PRODUCT
LIABILITY
ALL OTHER
REAL PROPERTY
ACTIONS UNDER STATUTES
CIVIL RIGHTS
[ ]440 OTHER CIVILRIGHTS
(Non-Prisoner)
[ ] 441 VOTING
[ ]442 EMPLOYMENT
[ ]443 HOUSING/
ACCOMMODATIONS
[ ] 445 AMERICANS WITH
DISABILITIES -
EMPLOYMENT
[ ]446 AMERICANS WITH
DISABILITIES -OTHER
( ] 448 EDUCATION
CONDITIONS OF CONFINEMENT
Checkif demanded incomplaint:
CHECK IF THIS IS ACLASS ACTION
UNDER F.R.C.P. 23
BANKRUPTCY
[ ) 422 APPEAL
28 USC 158
[ ] 423 WITHDRAWAL
28 USC 157
PROPERTY RIGHTS
(XI820 COPYRIGHTS
[ ] 830 PATENT
[ ] 840 TRADEMARK
SOCIAL SECURITY
[ ]861 HIA(1395ff)
[ ] 862 BLACK LUNG (923)
[ ] 863 DIWC/DIWW (405(g))
[ ] 864 SSID TITLE XVI
[ ] 865 RSI (405(g))
FEDERAL TAX SUITS
[ ] 870 TAXES (U.S. Plaintiff or
Defendant)
[ ] 871 IRS-THIRD PARTY
26 USC 7609
OTHER STATUTES
375 FALSE CLAIMS
400 STATE
REAPPORTIONMENT
[ ] 410 ANTITRUST
[ ]430 BANKS &BANKING
[ ]450 COMMERCE
[ ]460 DEPORTATION
[ ]470 RACKETEER INFLU
ENCED & CORRUPT
ORGANIZATION ACT
(RICO)
[ ) 480 CONSUMER CREDIT
[ ] 490 CABLE/SATELLITE TV
[ ) 850 SECURITIES/
COMMODITIES/
EXCHANGE
u
( ] 890 OTHER STATUTORY
ACTIONS
[ ] 891 AGRICULTURAL ACTS
[ ] 893 ENVIRONMENTAL
MATTERS
[ ] 895 FREEDOM OF
INFORMATION ACT
[ ] 896 ARBITRATION
[ ] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEWOR
APPEAL OF AGENCY DECISION
I ]950 CONSTITUTIONALITY OF
STATE STATUTES

DEMAND $_ OTHER
QOYOUCLAJM THIS CASE IS RELATED TO A CIVILCASE NOW PENDING INS.D.N.Y.?
JUDGE DOCKET NUMBER
Check YES onlyifdemandedincomplaint
JURY DEMAND: YES UMO
NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32).
[PLACEAN x INONEBOXONLY) ORIGIN
[xl 1 n~,ini no .,._ Dt d^=^=h fl 4 Reinstated or 5 Transferred from 6 Multidistrict 7 Appeal to District
SL 2 Removedfram L-1 3 Remanded L_l L_l n Judge from
Proceeding State Court from 5Ut*:"~ ^ Magistrate Judge
a. .iip.rtirePr.ii Appellate Judgment
| | b. Atleastone
party is prose.
(PLACEAN xINONEBOXONLY) BASIS OF JURISDICTION IFDIVERSITY, INDICATE
1USPLAINTIFF 2 U.S. DEFENDANT S 3FEDERAL QUESTION D4DIVERSITY CITIZENSHIPBELOW.
(U.S. NOTAPARTY)
CITIZENSHIP OF PRINCIPAL PARTIES (FORDIVERSITY CASESONLY)
(Place an[X] in onebox for Plaintiff andonebox for Defendant)
PTF DEF PTFDEF PTF DEF
CITIZEN OF THIS STATE []1 []1 CITIZEN OR SUBJECT OF A t]3[]3 INCORPORATED and PRINC'PAL PLACE []5 []S
FOREIGN COUNTRY OF BUSINESS IN ANOTHER STATE
CITIZEN OF ANOTHER STATE [12 []2 INCORPORATED or PRINCIPAL PLACE []4[J4 FOREIGN NATION []6 []6
OF BUSINESS IN THIS STATE
PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)
Andrea Magder, 445 East 80th Street, Apt 5J, New York, NY 10075
DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)
Belton Lee, 75-26 196th Street, Flushing NY 11366
Madhattan Film Company Global, LLC, 75-26 196th Street, Flushing, NY 11366
Christopher Bongirne, 513 East 11th Street, Apt B1, New York, NY 10009
Marc Jacobson &Marc Jacobson, P.C, 244 West 54thStreet, 9th Fl, New York, NY 10019
Dining With Alex, LLC, 75-26 196th Street, Flushing, NY 11366
DErIpReStATON ISEHE^EbTmADETHAT, AT THIS TIME, IHAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RESILIENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:
Check one THIS ACTION SHOULD BE ASSIGNED TO: WHITE PLAINS [x] MANHATTAN
(DO NOT check either box ifthis a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.) / / /7/1
DATE SIGNATURE OF ATTORNEY OF RECORD //^V ADMITTED TO PRACTICE IN THIS DISTRICT
YL/'* fl? MYES (DATE ADMITTED Mo 05 Yr. 1990 )
RECEIPT # / Attorney Bar Code #SPI0270
Magistrate Judge is to be designated bythe Cler^Ltae-Cqwfc
Magistrate Judge MP*> is so Designated.
Ruby J. Krajick, Clerk ofCourt by Deputy Clerk, DATED .
UNITED STATES DISTRICT COURT (NEWYORKSOUTHERN)
Sam P. Israel, P.C.
Sam P. Israel (SPI0270)
Eleonora Zlotnikova (EZ8814)
1 Liberty Plaza, 35th Floor
NewYork, New York 10006
T: (646) 787-9880 | F: (646) 787-9886
samisrael@spi-pc.com
AttorneysforAndrea Magder
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
14 CV
Q^
ANDREA MAGDER
Plaintiff,
-against-
BELTON LEE, MADHATTAN FILM COMPANY
GLOBAL, LLC, CHRISTOPHER BONGIRNE,
MARC JACOBSON, P.C, MARC JACOBSON,
AND DINING WITH ALEX, LLC,
Defendants.
COMPLAINT
Civ.
CO
_( :) *
JURY TRIAL DEMANDED
CT5
* r'-ri
C J ' '
-:0
o
Plaintiff Andrea Magder ("Magder" or the "Plaintiff"), as for her Complaint, by
and through her counsel, Sam P. Israel, P.C, against Belton Lee, Madhattan Film
CompanyGlobal, LLC ("MFCG"), Christopher Bongirne, MarcJacobson, MarcJacobson,
P.C. ("MJP") (collectively, the "Defendants"), and Dining With Alex, LLC ("DWA" or
the "Company") allege upon the Plaintiff's personal knowledge and otherwise upon
information and belief, as follows:
I. NATURE OF THE ACTION
1. This action is brought by an author and owner of valid copyright in a script
(Reg. No. Pau3-679-582) (the"Work") that was supposed to serveas the basisfor afeature
film Magder intended to produce. As alleged indetail below, the Plaintiff set out to make
appropriate business arrangements for the film, such as hiring actors, directors, co-
producers, as well as raising the capital necessary for its production. To this end, Magder
collaborated with defendants Belton Lee ("Lee") and Christopher Bongirne
("Bongirne"), individuals purporting to have skills and connections necessary for the
financing, productionand distribution of the film.
2. In furtherance of the Plaintiff's plans, she and Lee (along with MFCG, a
non-managing investor) formed Dining With Alex, LLCa member-managed limited
liability company that was to serveas the vehicle to procurefinancing, as well as make
other arrangements for the production of Magder's film and achieve its ultimate
distribution (the "Project"). The Company's operating agreement secured Magder's
creative control over the Project as well as her managerial authority in all of the
Company's material decision-making. Magder's creative control over the Project was
further memorialized in a written producer agreement which delineated her
responsibilities, assured her receipt of expected profits and other entitlements and set
forth her overall stewardship of the Project as a producer (the "Producer Agreement").
To be sure, it was the parties' stated intention that, to the extent it would become
necessary to assign or transfer Magder'scopyrights in the Work in order to develop the
film, any such transfer would be conditioned upon her receipt of this aggregate
consideration, including participation in the sharing of expected profits as well as her
continued control of the Project.
3. Yet, in the first of a series of maneuvers designed to wrest control of the
Project from Magder, Lee came to insist that Magder first transfer her copyrights in the
Work to a shell company operated by Lee, namely, MFCG. Thus, Magder entered into a
further written agreement with MFCGa limited liability company formed by Lee,
pursuant to which she would transfer her rights and copyrights in the Work to MFCG
(the"Purchase Agreement"). Ultimately, the copyrightsin the Workwere to be reposed
with DWAas effectuated by way of a concurrent written assignment from MFCG to
DWA. But even with these interstitial steps, Magder could rely upon the assurances of
2
creative control set forth in the DWAoperating agreement and the appurtenant Producer
Agreement. This was the essential part of consideration for Magder's agreement to
transfer certain rights in the Work to DWA. While ensuing events revealed the Plaintiff's
reliance upon these instruments to be misplaced, the ostensible transfer of her copyrights
inthe Work to MFCG has been rendered equally illusory.
4. As soon as the parties' agreements were fully executed, Lee and Bongirne
advanced apre-conceived plan to take over the Project (and appropriate the Plaintiff's
copyrights), deny Magder of her contractual entitlements and eliminate her control of its
development. With the substantial assistance of defendant Marc Jacobson ("Jacobson")
and his law firm (MJP)-ostensibly disinterested counsel recruited by Lee and Bongirne
to represent the Company-the individual defendants ousted Magder fromall of DWA's
affairs, and allegedly removed as amanaging member of DWA.
5. The Plaintiff informed Lee and MFCG that, unless their contractual
breaches were cured and she was assured performance by astated date, the transfer of
any rights in and to the Work were nullified. No cure was forthcoming, however, and
Magder demanded through independent counsel that Lee and MFCG immediately cease
and desist from any further exploitation of her copyrights in the Work. But they not only
ignored the Plaintiff's admonition and continued in their misconduct, but Jacobson
threatened Magder with retaliation should she take measures to enforce her intellectual
property rights. Indeed, DWA's presumptively "disinterested" legal counsel went so far
as to commence apreemptive action in aNew York State Court, demanding attorneys'
fees and a"declaration" that Magder's contractual rights had been forfeited (and with
them, by extension, those rights afforded her under the U.S. Copyright Act).*
6. Meanwhile under cover of this bogus one-page lawsuit, together with the
transfer of atrivial sum offered to Magder in the wake of the Plaintiff's demands (in the
apparent belief that this token sumwould withstand judicial scrutiny and be recognized
i Dining With Alex, LLC v. Magder, No. 652915/2014 (N.Y. Sup. Ct. N.Y. Cnty, Sept. 23,
2014), Summons with Notice.
3
a
as legally adequate payment in full for her copyrights), the Defendants are utilizing,
exploiting and creating unauthorized derivative material from the Work in willful
infringement of the Plaintiff's copyrights and in derogation of the protections afforded
her under the 17 U.S.C. 101, et seq. as amended (the "Copyright Act").
7. Now, facing irreparable injury and already having sustained monetary
losses, the Plaintiff states claims for direct and contributory copyright infringement;
breaches of the three governing written agreements; breaches of fiduciary duties (against
Lee, Jacobson and MJP); seeks preliminary and permanent injunctive relief (or, as an
alternative remedy, a constructive trust over the Work); as well as other equitable
remedies, together with an award of the damages occasioned by the Defendants-
misconduct.
II. PARTIES
1. Andrea Magder is an individual residing at 445 East 80th Street, Apt. 5J,
New York, N.Y. 10075.
2. Upon informationandbelief, defendant BeltonLee is an individual residing
at 75-26196th Street, Flushing, N.Y. 11366.
3. Upon information and belief, defendant Madhattan FilmCompany Global,
LLC (MFCG) is a limited liability company, maintaining offices and/or conducting
business at 75-26196th Street, Flushing, N.Y. 11366.
4. Upon information and belief, defendant Christopher Bongirne is an
individual residing at 513 East 11thStreet, Apt. Bl, NewYork, N.Y. 10009.
5. Upon information and belief, defendant Marc Jacobson, P.C. is a
professional corporation, maintaining offices and/or conducting business at 244 West
54th Street 9th floor, NewYork, N.Y. 10019.
6. Upon information and belief, defendant Marc Jacobson is an individual
attorney and principal of Marc Jacobson, P.C, maintaining offices and/or conducting
business at 244 West 54thStreet 9thfloor, NewYork, N.Y. 10019.
7. Dining With Alex, LLC is alimited liability company, maintaining offices
and/or conducting business at 75-26196th Street, Flushing, N.Y. 11366.
III. TURISDICTION ANDVENUE
8. The Court has subject matter jurisdiction over this action pursuant to 28
U.S.C. 1338(a), in that the Plaintiff's chief causes of action arise under the Copyright
Act. The Court also has subject matter jurisdictionunder 28 U.S.C 1331, and principles
of pendent jurisdiction. Supplemental jurisdiction over the common law and State law
claims alleged herein is available under 28 U.S.C. 1367(a) as they arise from the same
core of operative facts as those arising under 18 U.S.C. 1338, and are therefore properly
brought before the Court. Additionally, the Declaratory Judgment Act, 28 U.S.C. 2201
gives this Court jurisdiction over the declaratory relief requested in this action.
9. The Court has in personam jurisdiction over the Defendants and DWA
Defendant generally and/or specifically in that they reside in New York and/or
purposely avail themselves of the privileges of conducting business here under the laws
of New York State within the meaning of Section 301 of the New York Civ. Prac. L. &
Rules.
10. Venue is proper in this forum pursuant to 28 U.S.C 1391(a), (b) and (c)
and 1400(b) because the Defendants and DWADefendant conduct business within this
District, are amenable to process here, and/or have infringed Plaintiff's copyrights within
this District, as described herein.
IV. FACTS
The Plaintiff Authors the Work, Registers Copyrights in the Work, and Arranges
to Produce a Feature Film Based on the Work.
11. Plaintiff Andrea Magder is a New York City-based writer, producer, and
an active member of the film industry.
12. In or about 2012, Magder collaborated with Quentin Cine ("Cline")
("collectively, the "Co-authors") to write ascreenplay titled "DiningWith Alex" about an
Indianfamily's ruse to obtainatelevised reviewof their restaurant in the hope of infusing
this otherwise failingventure with customers.
13. On January 11, 2006, Magder registered the completed script with the
Writers Guild of America ("WGA") as afirst step toward producing afeature film based
on the screenplay.
14. Shortly thereafter, Magder launched the Project by soliciting the
involvement of potential investors and producers. At all times the Plaintiff intended and
expected to retain creative and managerial control over the Project from its inception to
the film's "final cut," which would require Magder's approval before being released to
the public. For over one year, the Plaintiff's efforts were dedicated to recruiting passive
investors and/or co-producers, who would share her vision while contributing to the
production of the filminreturn for expected profits or other financial compensation.
15. Her efforts led to defendant Belton Lee, an individual claiming to have
business relations with Chinese citizens of considerable means who were seeking
opportunities for investing in film production. Magder and Lee discussed the potential
for producing aforeign version of the film, and Magder decided to rewrite the script to
target the audience in China.
16. Uponcompletionof the screenplay, andwithCline's authorization, Magder
filed acopyright registrationstatement withthe U.S. Copyright Office designatingherself
as theclaimant and point ofcontact for inquiries or anypermission solicitations.
17. On May 28, 2013 the U.S. Copyright Office issued a Certificate of
Registration (Reg. No. PAu 3-679-582) for the Work. See Exhibit 1hereto.
18. Inensuing discussions, Lee suggested that his Chinese investors would be
prepared to contribute approximately 80% of the budget for the Project in exchange for
rights to the Chinese distribution of the film if assured of a release in China by no later
than February 14, 2015. Whereas Lee professed to be experienced in managing the
financial aspects of film production, he also sought a co-producer role in the Project in
exchange for facilitating the introduction between the Chinese investors and Magder.
19. Magder also recruited Bongirne as a producer/line producer.
20. Thus, both Bongirne and Lee would be engaged by DWA as co-producers
tasked with furthering Magder's creative vision for the Project. The three individuals
agreed to an equally shared producer salary, though Magder would receive further
compensation and benefits derived from the anticipated distribution of the film she
conceived with Cline. (For his part, Cline declined to have a role in the production of the
feature film. He sought only writing credits, a cash purchase price and a portion of certain
future proceeds in exchange for his rights to the Work.)
21. To effectuate their arrangement, Magder and Lee formed a limited liability
company (DWA), whichwould serve as the vehicle for developing, financing, producing,
distributing and otherwise engaging in transactions in connection with the Project. Lee
and Magder would be the only managing members of DWA, and MFCG would be the
sole non-managing member.
22. In accordance with their agreement and mutual understanding, Lee and
Magder filed DWA's Articles of Organization on May 23,2014.
23. Yet, before they entered into an operating agreement for DWA, Lee insisted
that any transfer of copyrights would take place through MFCG, which would purchase
the rights and copyrights in the Work from Cline and Magder, and simultaneously
transfer those rights to DWA.
TheRelevant Contractual Arrangements Governing the Parties' Relationship and
Use of the Work.
24. On or about June 12, 2014, Magder entered into three concurrent
agreementsthe Dining With Alex Operating Agreement ("DWAOA"), the Producer
Agreement, and the Purchase Agreementthat would encapsulate her discussions with
Lee with respect to her involvement with the Project and her entitlements. As
subsequently memorialized in the written agreements, the parties acknowledged that not
only would the Plaintiff and Cline receive financial compensation in exchange for their
rights in the Work, but that Magder and Lee would have equal control of the Project and
DWAas Managing Members, with Magder responsible for all creative processes and Lee
in charge of DWA's non-material, day-to-day business operations, subject to certain
important restrictions, including, in relevant part: that any disbursement of funds would
be in accordance with the agreed-upon budget; Lee would confer with Magder on all
material decisions before taking any actions in connection therewith; no distribution
agreements would be executed without the prior written consent of both managing
members, and; no attorneys or other professionals would be retained or terminated by
the Company without the prior written consent of both Lee and Magder.
25. Retention of creative control was essential to the Plaintiff. Whereas her
reputation and goodwill depended on the outcome of the Project, the right to control the
development of the filmwas specifically carved out and reserved for Magder in the three
concurrent governing agreements. Thus, Magder expressly reserved control over the
creation and development of all derivative material.
26. The Producer Agreement with DWA, states that Magder, Lee and Bongirne
would "work cooperatively to produce a world class motion picture." (Producer
Agreement at 1).
27. Under the Producer Agreement, Magder was to receive "fixed
compensation" in the amount of $125,000.00, although up to $60,000.00 of that amount
could be deferred and payable pro-rata, pari-passu with all other deferred compensation,
(in accordance with the terms of the operating agreement for DWA). Further, any
"deferred" amount would be the same as to Magder, Bongirne and Lee, and all payments
were required to be made at the same time and frequency as payments made to Lee and
Bongirne as producer. Id. ( 4.1-4.2).
28. Among Magder's other significant entitlements under the Producer
Agreement, the Plaintiff was assured aportion of the expected profits from the film (after
certainstated expenses) as follows:
Andrea Magder: 30%
Belton Lee: 55%
Chris Bongirne: 15%
8
29. The Producer Agreement states that no changes will be made to the
distribution of the net proceeds and adjusted gross receipts without prior written
consent from the employeethat is, Magder.
30. Concurrently with the Producer Agreement, Magder, Lee and MFCG
executed an OperatingAgreementfor DWA, which provides that Magder and Leewould
be the managing members of DWA, with 70and 30membership units respectively; and
MFCGwould be its sole "Cass Amember" (with 80Class A membership units), meaning
any actions taken by the managing members would neither be subject to, nor require
MFCG's approval. Magder agreed to the 70/30 split (instead of a 50/50 partnership)
because Lee agreed to finance the Project (80% from investors in China and 20% from
himself or another investor).
31. Section 8.1of the DWAOAprovides that the "business, property and affairs
of the Company shall be managed and directed exclusively by the Managing Members
[and] no other member shall have the power to so act or bind the Company unless agreed
to in writing by the Managing Members."
32. Furthermore, the DWAOA states that Magder will control all creative
decisions and have the final say over script, talent, director and writer engagements, the
film'sfinal cut, as well as the negotiation and execution of any related agreements.
33. Thus, by its own terms, DWAOA preserves Magder's creative control over
the Work and the Project, as well as managerial authority with respect to the film's
production.
34. The DWAOA also references the concurrently-executed Purchase
Agreement, which would affect a limited transfer of the Co-authors' copyrights and
entitlements to the Workfirst, to MFCG and then to DWA by way of a simultaneously-
executed Assumption and Assignment Agreement (the latter purporting to assign the
Purchase Agreement, and "all rights and obligations granted to MFCG thereunder" to
DWA).
35. Yet, DWAcould only exploit Magder's (and Cline's) copyrights in the Work
if the authors received their bargained-for consideration.
9
36. Unlike the express recitals set forth in the Assumption and Assignment
Agreement, the Purchase Agreement does not acknowledge that Magder and Cline were
already in receipt of their due consideration.
37. Rather, the Purchase Agreement provides that MFCG shall, inter alia, pay
or cause to be paid to Cline and Magder $65,200.00 (the "Purchase Price") for the rights
in the Work but provides for Magder's future entitlements in the form of expected profits
and writer's credit, together with full and timely producer compensation (per the fully
incorporated Producer Agreement), and consideration under the DWAOA. Whereas it
was acknowledged that $7,000.00 of the Purchase Price had been paid to Magder, the
remaining $25,600.00 was to be paid to her concurrently with the transfer of any funds to
a newly recruited writer/director (who remained a third party to the agreement), and
even then the transfer assumedand could not be effectuated withoutMagder's receipt
of her producer compensation under the terms of the integrated contract providing for it.
(Purchase Agreement at 1).
38. In addition to all of these payments, Magder was entitled to "Contingent
Compensation" consisting of a percentage of the net proceeds on the film and passive
payments in connection with the enumerated adaptions of the film. Id. ( 2).
39. Yet another part of Magder's consideration for the Plaintiff's transfer of
rights was that she would retain control over the Project, such that no material decisions
could be made without her approval, and so long as she was solely in charge of the
creative aspects of the Project. To be sure, Lee and MFCG warranted that they would
perform all of their obligations under the full set of the parties' cross-referenced
agreements.
40. Indeed, Magder would not have given up her rights and copyrights in the
Work she authored unless she was assured of, and received the foregoing consideration.
41. In reliance upon the bona fides of her counterparties, Magder executed the
Purchase Agreement, intending to assign the copyright in the Work to MFCG in the
expectation of receipt of the aforementioned consideration and in accordance with the
Plaintiff's expectations.
10

... the executionof the three governing agreements


42. ta the weeks leading up to the executr ^
, A*11 nf her contractual obligations, uic
set forth below, Lee wrested control of DWA fro ^ ^^ ^ ^
entitlements and repudiating the LLCs ** nte.
..e.,theUon,shareofherb,gained-forcor,^-^ ^
proJertWttHotPIi^AthfonorPno
r u,o nWAOA's provision that no attorneys
44. mdirect violation of the DWAOA p
consent of both Lee and Ma^ Bongrme and ^ P ^ ^^^
-^^r:necess^ to divest Magder of her
deploy his services in setting
intellect property rights and compensation.
$100,000.00 refiner, no questions aked ^ ^^^
Hsproposedretainer agreement mdu^^^^^^^.beengagement
, Magder explained to^w^h * _ ^^ , ^ of
x/myc fees set forth in the proposes
^, MJFs fees ^ to ^ ^gagement.
DWAsbudgetconstramts,andtherefor ^
. mablatant violation of Magders trust, Lee an g^
^ Bongirne and ,acobson had negouated and con^c^^
participationwhenJacobsonincludedMagderonanemauconhr
To: Beiton <beitoniee@gmai!.com>
Belton, ,mant that iS included in this email is
email below he writes... Basea one
discussion agreeing to his 100k fee.
A.
Forwarded message -
....hn <Marcfmarc
Date: Sat, Jun7,2014at8.58PM pcRetainer Agreement
n aii- . h-H.BEDUNE copy to compare with the prior draft. Based
Dear All: . 4 anrepment attached a RtuuNe wyy
If it is,!
Thank you
Marc
would be grateful for your respective signatures on it.
MSc Jacobson of Marc Jjjw^ 10003 USA
mBroadway, %^f^l6Zl%-^
Ke' :iIl6245495o%6 Skype: marciacobson
Email: marc@marcjacobson.com
w'-vvv marqacobson.com
v.AA'.twitter.com/marcjacobsonpc
written
47 Jacobson knew that he required both Magder's and Lee's pnor
a nwA's counsel Indeed the very retainer agreement he
space for Magder's signature:
12
DINING WITH ALEX, LLC
Marc Jacobson
By:
Beiton Lee
Sincerelyyours,
>:UW
Andrea Magder
48. Magder never signedthe retainer agreement. But Lee reached anagreement
with Jacobson and signed it over the other Managing Member's protestations; in fact,
Jacobson continues to hold himself out as DWA's counsel despite the fact that his retainer
agreement has not been executed by both managing members of DWA (and despite his
brazen fiduciary violations that are described in further detail below).
49. In short order, it became apparent that Magder's resistance to Jacobson's
engagement was well-placed: the Company's counsel was chiefly tasked with defeating
the interests of the managing member of the DWA.
50. Apparently, Jacobcon was also Bongirne's personal attorney, and, in short
order, Bongirne became Jacobson's point of contact, and although Magder did not
approve of his retention, she demanded to be involved in any arrangements Jacobson
was contriving for DWA's conduct of its business affairs, including that he provide
Magder with copies of all of his communications in connection with the Project.
51. Jacobson outright ignored Magder's requests and failed to apprise her of
various business arrangements, communications, and negotiations that would have a
material impact on DWAand the production of the film. When Jacobson did forward or
copy Magder on e-mails, they were not only carefully selected but he extracted the
13
attachments transmitted tothe other designated recipients. Insum, Jacobson purposely
withheld material information regardingthe Project fromMagder.
52. Inthe subsequent months, the Company's ostensible legal counsel would
come to engage in a number of improper tactics and activities intended to serve the
interests of Lee and Bongirne to the exclusion of the Plaintiff's interests. His conduct
culminated in brazen breaches of fiduciary duties to Magder.
The Defendants' Infringements ofthe Plaintiffs Copyrights in the Work.
53. At all times since June 4, 2014, Magder was employed as a producer by
DWA. Yet, to date, the Plaintiff has not received any salary,compensationor entitlements
under the Producer Agreement. Nor has Magder received her full consideration under
the three concurrent agreements which altogether were toserve asbases for her transfer
of copyright ownership.
54. Since Magder executed the DWAOA, Producer Agreement, and Purchase
Agreement, Lee has ousted Magder from managing the business, property and affairs of
the Company. He has entered into agreements and business arrangements with various
individuals andentities, holding himself out assole theManaging Member ofDWA, and
has even assumed full creative decision-making-an area expressly assigned to, and
conferred upon, Magder. Lee also purposely withheld material information regarding
the Companyand the Project fromMagder.
55. For instance, after one meeting in which Lee, Bongirne and Magder
discussed the script with one of the investors anddirector Ross Katz ("Katz"), Lee and
Bongirne demanded that Magder stay out of the project entirely. Although Magder
asserted that creative control was the reason she agreed to the extant corporate structure
to begin with, no less the prospective assignment of her rights to the Work, Lee and
Bongirne made sure that Magder would never see any of Katz's drafts, and would not be
able to comment on them.
14

56 Indeed, when Katz produced his re-written final draft of the script-and
Magder was finally aUowed toviewhis workproduct-shewas dumbstruckby its dearth
of professional craftsmanship and overall remarkably poor quality. She advised Lee and
everyone involved with the Project that the script was so subpar, that proceeding with
the production based on the rewrite would impair Magder's professional reputation and
goodwill. Although Magder had the final approval of all decisions regarding the scnpt,
Lee ignored the Plaintiff's entreaties and disseminated the script to third parties for the
purpose of moving forward with the production.
57 In another blatant disregard for the Plaintiff's rights, Lee opened abank
account for DWA in Chase Bank's location in Queens, New York without notifying
Magder or seeking her approval. The Plaintiff contacted the bank to determine how Lee
was able to open an account for DWA without her knowledge or authorization.
According to the bank's representatives, aU members of aUmited liabUity company must
be present in order to open acompany account. Apparently, Lee supplied false
information about DWA to the bank in order to unilaterally open abank account that
onlyhe could access.
58 Lee, through his shell company MFCG, also failed to transmit the stated
consideration to both Magder and Cline provided by the Purchase Agreement. In
selectively withholding Magder's entitlements, Lee unilaterally disbursed Company's
funds toRoss Katz andother individuals.
> 59. On or about July 25,2014 Magder and Cline transmitted awritten notice to
MFCG and Lee, stating that, among other things, their "failure to pay the balance of the
Purchase Price to the Writers [Magder and Cline] ... is abreach of the express terms of
the Purchase Agreement and as aresult, the transfer of the rights to the Screenplay as
provided therein is null and void and all right, title and interest in and to the Screenplay
remain [fjully vested with the Writers."
60. Lee and MFCG had ten (10) business days to cure the material breaches
under the Purchase Agreement and assure Magder that they would otherwise honor their

t0 .epresent-if she attempted to enforce her contractual rights.


62 Jacobson ignored the apparent conflict of interest occasioned by his
62. jacoDson i6 "Where is no point in
concurrent representation of the DWA, and simply stated that Where
Kav^gafutUediscussionandthelawwulnotmandateit.''
63 According to Jacobson, the day after he received Magder sJuly a 2DH
j t i o* 9014 Ms Magder is no longer a Managing
"[a]s of Saturday, July 26,2U14, ms. ^
With Alex, LLC."
M Yet nothing in the DWAOA authorized ^-th^hufejn^
membT-or Ithe Cass Ashareholders to unUaterally "remove" Magder-a fact
^ownto both Lee and Jacobson whenconspiring to oust her.
e5 Indeed, Section 3.1 of DWAOA titled "Members and Units" states ft*
.JfteM^bers and ft. o^c"^
-^^r:^::::rs*,;
Managing iviemucto o4.^,foc 4-w "no approval
" , . jj a\ drtViPr Section 3.2 states tnat """cr
nwA DWAOA 3.1 (emphasis added). Further, secnoi
mDWA.DWAUA9 v f MPrCl shall be required with respect to any
4. f +v> Class A Members [i.e., MFCG] snail De re4
or consent of the L-iass t\ ivicxi
16
m0re than sixty (60) days SS*JsSaibaUS!BL-^^ of
- -isrArrc^.---
'"^rrddateforanyvoteregard.gacompanym.tte
1,4 w> reauired to vote on any Company ic
members of the Company would be requ^ ^ m
rr-.rrr.t-u^-
, .dav after Magder and Cline transmitted their letter.
occurred one day alter magu
67 mfurfterdisregardforhisflduciaryob,igattonsa,danorneys*s^
matter." He stated as follows:
*. *m of Ms Magder's behavior, actions, attitude
By virtue of all or Ms. Mag ith ^^ Ms.
and communications among the P^^^me Producer
Magder is hereby terminated ^J^eto cure. As aresult of
Agreement. These^^^^TLto Ms. Magder at any
this termination, no payment is or win
time under the Producer Agreement.
Q^^bothMr Lee andMr. Bongine
You should also be aware that ^ V work ^ Ms.
the resignation letters.
By now you are both ^JX.
V^ance of the !%*Agreement is nowin
^ST^AOL^oUso mere should be no concern
abLtwhetherthefundsareavailable. ^
. Thus not only did Jacobson impress aself-serving, an
Tfte three agreements in service of himself, Bongirne and Ue, and with
interpretation of the three agre ^ ^ md Qwing to
fte intention of injuring Magder, but he oumg
. - ,.*'-"""'"
Magder's requests. ^-retained counsel with
* ,even"^r^r^^ued'-anyaction
"--^^rs^C-dothercopyrightWremedies,
^gmjunctiverehef.orstatutory ^^^
70. jacobson set forth fte terms pursuant ^ ^^ ^
resolveftematter,and demanded ^" "^^he a.e.dy represented
:;:;:;r;rrPri:*-:--- *~
^.Uhavenorolewhatsoever.fte^-- ^ _
^c^r=", ,le
Summons with Notice" which mandated her appear^
commenced by DWA. The relief sought in *~~jM
^auseDefendanttMagderJdidnotwiftdraw^o ^ ^
unless certain requests or demands were met vnthm ac ^
With Ate, LLC ..Mag-ter, No. 652915/2014 (N. ^.o^olof
DWA ,dthe fUm entirely from "^^^^tlbIow, Jacobson
OWAOA and purported to ren er her***- her July 25,2014 letter to
^UedMagderwiftafrivolouslawsuitu^ ^ ^^
counSel-in which the Plaintiff requested that Lee an
18
breaches and repudiationsand affirmatively represent to Jacobson and his associates
that she will take no actions with respect to the Project.
74. Whereas Jacobson, Bongirne, MFCG and Lee each assumed that the
Plaintiff had conclusively transferred her rights and copyrights in the Work, Lee and
MFCG repudiated and/or breached their respective agreements with Magder in all
material ways and forfeited any and all claims to the copyrights in the Work.
75. Currently, upon information and belief, the Defendants are actively making
unauthorized uses of the Work with a plan toward releasing the film in or about
February, 2015; they have not and will not cure their prior defaults, nor provide
prospective remuneration or entitlements, and their infringing conduct comprise
violations of Magder's exclusive rights under the Copyright Act.
76. The Plaintiff faces irreparable harm as a direct and proximate result of the
Defendants' ongoing acts of infringement, and has already suffered substantial monetary
losses including gains, profits and advantages which were to derive from the Work's
commercial exploitation.
77. Faced with the Defendants' actions and misconduct, the Plaintiff has no
adequate remedy at law.
COUNT ONE
COPYRIGHT INFRINGEMENT
(Against Lee, MFCG, and Bongirne)
78. Plaintiff re-alleges and incorporates by reference each and every allegation
contained in each paragraph above as if fully set forth herein.
79. The Copyright Act confers upon copyright ownerssuchas the Plaintiff
"the exclusive right to do and to authorize," inter alia, "(1) to reproduce the copyrighted
work in copies ...; (2) to prepare derivative works based upon the copyrighted work; (3)
to distribute copies ... of the copyrighted work to the public by sale or other transfer of
ownership...." 17 U.S.C. 106 (l)-(3). And derivative works are defined as "work[s]
19
based upon one or more preexisting works, such as [an] .. .art reproduction ... or any
other form in which awork may be recast, transformed, or adapted." See 17 U.S.C. 101.
80. The Plaintiff has in all respects complied with the requirements of the
Copyright Act with respect to the registration of the Work.
81. In the weeks leading up to the execution of the three agreements governing
the prospective assignment of copyrights in the Work, and to date, Magder performed all
of her contractual obligations; at all times the Plaintiff operated in accordance with the
promises and representations she made to Lee and MFCG.
82. For their part, Lee, Bongirne and MFCG, at all relevant times, knew that
Magder was the copyright owner in the Work and any transfer of Magder's rights in
connection with the Work was contingent upon the fulfillment of their contractual
obligations under the DWAOA, the Purchase Agreement and Producer Agreement. They
further knew that Magder had retained control over the creation and development of
derivative material, namely, the film.
83. MFCG and Lee repudiated their contractual obligations to Magder,
including the Producer Agreement which Lee caused DWA to breach (and which
breaches went to the very root of the parties' contractual relationship). Lee, Bongirne and
MFCG also went outside the scope of their license by exploiting the rights retained by
Magder without herauthorization.
84. The Plaintiff notified Lee and MFCG of the foregoing misconduct and
demanded that they cease and desist from further exploiting her copyrights in the Work
inany manner whatsoever, includingby advancing the production of afeature filmbased
on the Work through DWA.
85. Accordingly, Lee and MFCG knew that, because they failed to cure the
breaches and indicated that Magder would be stripped of her bargained-for entitlements,
they stood to forfeit any rights, including copyrights to the Work. Bongirne was on notice
of the forgoing by virtue of his employment with DWA and Lee.
86. Nevertheless, Lee, Bongirne and MFCG willfully and intentionally
disregarded the Plaintiff's rights by continuing to engage in the unauthorized
20
exploitation of the Work, including copying, distributing, and/or creating derivative
material from the Work in derogation of the Plaintiffs' rights under the Copyright Act.
87. Not only have they refused to cease their infringing activities, but Lee and
MFCG-through their ethically conflicted counsel Jacobson-threatened the Plaintiff
with reprisal if she took any steps to protect her intellectual property in this Court.
88. As adirect and proximate result of these defendants' willful, wanton, and
continued infringements of the Plaintiff's copyrighted Work, the Plaintiff has already
suffered damages, including lost gains, profits and advantages derived therefrom.
89. The foregoing infringing activities are ongoing. Unless enjoined by this
Court, and they will continue to infringe the Plaintiff's copyrights in the Work; if left
unabated, their misconduct will cause thePlaintiff tosuffer irreparable injury.
90. Consequently, by reason of the foregoing, the Plaintiff is entitled to the
following relief: pursuant to 17 U.S.C. 502, a preliminary and permanent injunction
restraining Lee, Bongirne and MFCG, and each of their respective officers, agents,
employees, representatives, and parent and subsidiary corporations from further
infringement of the Plaintiff's copyrighted Work and any derivative material; an order
directing Lee, Bongirne and MFCG to deliver to the Plaintiff or destroy all unauthorized
copies of the Work and derivative material; an accounting and judgment against them;
all profits received by each from the use, distribution or sale of the infringing material
including derivative works thereof; all actual damages suffered by the Plaintiffs as a
result of their copyright infringement, as provided in 17 U.S.C. 504(b) or, in the
alternative statutory damages provided for in 17 U.S.C. 504(c); an award of all costs of
this action together with reasonable attorneys' fees (pursuant to 17 U.S.C. 505); such
otherfurther relief as the Court deemsjust, proper and equitable.
21
A
COUNT TWO
CONTRIBUTORY COPYRIGHT INFRINGEMENT
(Against Bongirne, MJP and Jacobson)
91. Plaintiff re-alleges and incorporates by this reference each and every
allegation contained ineach paragraph above asiffully setforth herein.
92. Bongirne, MJP andJacobson, at all relevant times, knew that Magder was
the author andcopyright owner of the Work. They also knew that Lee and MFCG had
violated the contractual terms that governed the relationship with Magder and the
contingent transfer of copyrightsfromMagder to DWA.
93. For their part, MJP and Jacobson were the recipients of the Plaintiff's July
25, 2014 letter in which Magder notified Lee and MFCG of their breaches and asserted
her rights to the Work. Thus, Bongirne, MJP and Jacobson knew or had constructive
knowledge thatLee andMFCGwere utilizing thePlaintiff's copyrights without Magder's
authorization and that their contractual arrangements were null and void.
94. Without her authorization, license, or valid transfer, Bongirne, MJP and
Jacobson have willfully and materially contributed to each act of infringement of the
Plaintiff's rights and copyright in the Work by participating in, enabling, inducing, and
facilitating, the foregoing infringing acts of Lee and MFCG and are therefore liable as
contributory copyright infringers for the.
95. Asa direct and proximateresult of the violations of the Plaintiff's exclusive
rights under the Copyright Act, Bongirne, MJP and Jacobson, the Plaintiff is entitled to
the maximum statutory damages pursuant to 17 U.S.C. 504(c). Alternatively, at the
Plaintiff's election, pursuant to 17U.S.C. 504(b), the Plaintiff is be entitled to her actual
damages together with the defendants' profits from infringement, as will be proven at
trial.
96. The Plaintiff is entitled to costs, including reasonable attorneys' fees,
pursuant to 17 U.S.C. 505.
97. Further, in that the willful or reckless misconduct by Bongirne, MJP and
Jacobson is causing and will continue to cause the Plaintiff great and irreparable injury
22
that cannot fully be compensated or measured in money, the Plaintiff has no adequate
remedy at law. Pursuant to 17 U.S.C. 502, the Plaintiff is entitled to a permanent
injunction requiring Bongirne, MJPand Jacobson to employ reasonable methodologies to
prevent or limit infringement of Plaintiff's copyrights.
COUNT THREE
FOR DECLARATORY RELIEF
FEDERAL DECLARATORY JUDGMENT ACT, 28 U.S.C. 2201,2202
(Against MFCG, Lee and DWA)
98. Plaintiff re-alleges and incorporates eachand every allegationcontainedin
each paragraph above as if fully set forth herein.
99. ThePlaintiffis the original author and owner of copyrights in the Work.
100. ThePlaintiffarranged to transfer her copyrights in the Workto MFCG and,
subsequently, DWA in exchange for certain statedconsideration and conditioned upon
her control over the creative development of the Workand the Project.
101. Intheweeks leading up totheexecution ofthethree agreements governing
thearranged transfer ofcopyrights intheWork, and todate, Magder performed all ofher
contractual obligations; at all times thePlaintiff operated inaccordance withthepromises
and representations she made to Lee and MFCG.
102. Yet, the Plaintiff never received her bargained-for consideration and was
deprived of the promised authorityand control over theProject, the transfer did not take
place and the Plaintiff remains the lawful owner of the copyrights in the Work.
103. Nevertheless, and in defiance of the Plaintiff's July 25, 2014 notice to Lee
and MFCG tocease and desistfrom continuing toexploit her copyrights intheWork, the
Defendants continue todosotothedetriment ofthePlaintiff's rights undertheCopyright
Act.
104. As a consequence of this actual, present and justiciable controversy
between the parties as to the rights, title, and interest in the copyrighted materials
described above and pursuant to the Federal Declaratory Judgment Act, 28 U.S.C.
2201, 2202, the Plaintiff seeks a resolution of this controversy by a declaration of this
23
Court that the Plaintiff is a rightful owner of the copyrights in the Work, including any
copies andderivative materials based onor derived from theWork.
105. The Plaintiff has suffered and will continue to suffer harm as a result of the
continued exploitation of the Plaintiff's Work by Lee, MFCG and DWA without
remuneration or consideration that the Plaintiff bargained for under the DWAOA,
Purchase Agreement and Producer Agreement.
COUNTFOUR
BREACH OF THE PRODUCER AGREEMENT
(Against DWA and Lee)
106. Plaintiff re-alleges and incorporates each and every allegation contained in
each paragraph above as if fully set forth herein.
107. On or about June 12, 2014, Magder entered into the Producer Agreement
with DWA(which operated concurrently with the DWAOAand Purchase Agreement as
part of the same transaction), which stated that she, Lee and Bongirne would "work
cooperatively to produce a world class motion picture."
108. Under the Producer Agreement, Magder was entitled to "fixed
compensation" in the amount of $125,000.00, as well as other entitlements, including
producer credit, insurance, and expectedprofitsfromthe film, in exchange for rendering
her services as a producer to DWA, as well as transferring her copyrights in the Work
(for which she was to receive additional consideration reflected in DWAOA and the
Purchase Agreement).
109. The Producer Agreement stated that no changes will be made to the
distribution of the net proceeds and adjusted gross receipts without Magder's prior
written consent.
110. From June 4, 2014 and until July 28, 2014 Magder has rendered full
performance under the Producer Agreement
111. Though DWA and Lee have received the benefits of Magder's services
under the Producer Agreement, they have refused to pay Plaintiff the sums due and
owing to her. Further, on July 28,2014 Jacobson advised Magder on behalf of DWA and
24

Lee that Magderwas terminatedas a producer, and "no payment is or will be due to Ms.
Magder at any time under the Producer Agreement."
112. To date, the amount of $125,000.00 has beenwrongfully withheldfrom the
Plaintiff, and she has been deprived of her other contractual entitlements, including
expected profits and commissions.
113. By reason of the foregoing, the Plaintiff is entitled to recovery
compensatory damages in an amount to be determined at trial, but which the Plaintiff
believes to exceed $1,000,000.00.
COUNT FIVE
BREACH OF DWAOA
(Against Lee and MFCG)
114. Plaintiff re-alleges andincorporates each andevery allegation contained in
each paragraph above as if fully set forth herein.
115. On or about June 12, 2014 Magder, Lee and MFCG entered into the
DWAOA (which operated concurrently with the Producer Agreement and Purchase
Agreement aspart ofthesame transaction), which provides that Magder andLee would
be the Managing Members of DWA. Under the DWA, Magder would have thirty (30)
units andLee would have seventy (70) units asManaging Members. MFCG would bethe
sole "Class Amember" (having 80 Class Amembership units).
116. Under the DWAOA, the "business, property and affairs of the Company
shall be managed and directed exclusively by the Managing Members [and] no other
member shall have the power to so act or bind the Company unless agreed to inwriting
by the Managing Members."
117. Furthermore, the DWAOA states that Magder will control all creative
decisions and have the final say over script, talent, director and writer engagements, the
film'sfinal cut, as well as the negotiation and execution of any related agreements.
118. Thus, byitsownterms, DWAOA preserves Magder's creative control over
the Work and the Project, as well as managerial authority with respect to the film's
production, inexchange for the transfer of her copyrights inthe Work (for which she was
25
to receiveadditional consideration reflectedin the Producer Agreement and the Purchase
Agreement).
119. Fromthe time that Magder and Leeformed DWA, Magder had been acting
as theManaging Member for the benefit of theCompany, and fully performed her duties
and obligations under the DWAOA.
120. Lee and MFCGbreached the terms of the DWAOA by, among other things,
wresting managerial authority away from Magder, engaging professionals and making
material decisions for the Company without Magder's consent, purporting to terminate
her services as a producer, withholding material information, and otherwise failing to
confer with Magder regarding all other significant Company matters, including those
over which she had exclusive control.
121. On July 25, 2014 Magder transmitted a written notice to Lee an MFCG,
informing the defendants of their breaches. Rather than curing their breaches and
providing assurances, the defendants retaliated by purporting to remove Magder's
managerial authority and threatening the Plaintiff with legal prosecution.
122. Although Magder agreed to transfer her copyrights in the Work to DWAin
exchange for her bargained-for consideration, the Plaintiff has been ousted from the
Company and she has been deprived of her contractual entitlements under the DWAOA,
including expected profits and commissions.
123. By reason of the foregoing, the Plaintiff is entitled to recovery of
compensatory damages in an amount to be determined at trial, but which the Plaintiff
believes to exceed $1,000,000.00.
COUNT srx
BREACH OF THE PURCHASE AGREEMENT
(Against MFCG)
124. The Plaintiff executed the Purchase Agreement concurrently with the
DWAOA and the Producer Agreement. The Purchase Agreement is incorporated by
reference in the DWAOA, and provides that MFCG would purchase Magder's and
Cline's respective rights, copyrights and entitlements to the Work, while simultaneously
26

assigning "all rights and obligations granted to MFCGthereunder" to DWAby way of


an Assumption and Assignment Agreement.
125. The Purchase Agreement provides that MFCGshall, inter alia, pay or cause
to be paid to Cline and Magder $65,200.00 for the rights in and to the Work, and further
assumes that Magder would receive her full and timely producer compensation, as per
the fully incorporated Producer Agreement, as well as her due consideration under the
DWAOA.
126. Further, in addition to all of these payments, Magder was entitled to
"Contingent Compensation" consisting of a percentage of the net proceeds on the film
and passive payments in connection with the enumerated adaptions of the film.
127. Yet another part of Magder's consideration for the Plaintiff's transfer of
rights was that she would retain control over the Project, such that no material decisions
could be made without her approval, and so long as she was solely in charge of the
creative aspects of the Project. To be sure, Lee and MFCG warranted that they would
perform all of their obligations under the full set of the parties' cross-referenced
agreements.
128. Unlike the express recitals set forth in the Assumption and Assignment
Agreement, the Purchase Agreement does not acknowledge that Magder and Clinewere
already in receipt of their due consideration; rather, DWA could only exploit Magder's
(and Cline's) copyrights in the Work if the authors received their bargained-for
consideration.
129. Indeed, Magder would not have so freely given up her rights and
copyrights in the Work she authored unless she was assured of, and received the
foregoing consideration.
130. Although Magder rendered full performance under the Purchase
Agreement, MFCG breached it by failing to pay Magder her financial compensation,
including Contingent Compensation and any expected profits thereunder, and denuded
the Plaintiff of the entirety of considerationshe would receive under all three governing
agreementsin exchange for her intellectual property rights in the Work.
27
131. On July 25, 2014 Magder transmitted a written notice to Lee an MFCG,
informing the defendants of their breaches. Under the Purchase Agreement MFCGwas
allotted ten (10) days to cure its contractual defaults.
132. Yet, MFCG retaliated by purporting to remove Magder's managerial
authority, threatening the Plaintiff with legal prosecution, and converting the sums due
and owing to Plaintiff by transferring the funds to Jacobson's bank account.
133. By reason of the foregoing, the Plaintiff is entitled to recovery of
compensatory damages in an amount to be determined at trial, but which the Plaintiff
believes to exceed $1,000,000.00.
COUNT SEVEN
TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS
(Against Lee and Jacobson)
134. Plaintiff re-alleges and incorporates each and every allegation contained in
each paragraph above as if fully set forth herein.
135. A claimof interference with contractual relations "consists of four elements:
(1) the existence of a contract between plaintiff and a third party; (2) defendant's
knowledge of the contract; (3) defendant's intentional inducement of the third party to
breach or otherwise render performance impossible; and (4) damages to plaintiff."
136. A tortious interference claim may be premised on an at-will or voidable
contract.
137. As alleged above, Magder concurrently entered into the DWAOA, Purchase
Agreement and Producer Agreement.
138. Whereas Jacobson knewabout the existence of the three aforesaid contracts,
he intentionally and by wrongful means induced Magder's contractual counterparts to
breach the agreements and thereby facilitated: her removal as Managing Member of the
DWAOA, the conversion of funds due and owing to the Plaintiff under the Purchase
Agreement, and the deprivation of her entitlements under the Producer Agreement.
28
139. As MFCG's principal andsignatory tothe Purchase Agreement, Lee caused
MFCG not to render consideration that was due and owing to Magder under the
Purchase Agreement.
140. The Plaintiff sustained damages as a result of the foregoing breaches, the
amount of which will be determined at trial, but which the Plaintiff reasonably believes
to exceed $500,000.00.
COUNT EIGHT
BREACH OF FIDUCIARY DUTIES
(Against Lee)
141. Plaintiff re-alleges and incorporates each and every allegation contained in
eachparagraph aboveas if fullyset forth herein.
142. Managing members have statutory and common-law fiduciary duties to
the other members ofa limited liability company. N.Y. LLCL 409.
143. As the Managing Member and majority shareholder of the Company, Lee
owesfiduciaryduties to Magder.
144. Lee breached his fiduciary duties to Magder by ousting the Plaintiff from
the Company, oppressing Magder and altogether depriving her of the bargained-for
contractual entitlements that were to serve as basis for her transfer of copyrights in the
Work to DWA.
145. As set forth more fully above, Lee wrested all managerial authority away
from Magder without notice, engaged professionals and made material decisions
regarding theCompany withoutMagder's priorconsent, otherwise failed toconfer with
Magder regarding all other significant Company matters, including those over which she
had exclusive control, purported to terminate her services and contractual entitlements
under all three agreements, and altogether violated the spirit of the parties' agreements.
146. By reason of the foregoing, Lee is liable to the Plaintiff for damages
sustained by such breaches of fiduciary duties, including any punitive damages
occasioned by Lee's economic duress, inanamount tobe proven at trial.
29
COUNT NINE
BREACH OF FIDUCIARY DUTIES
(Against MJPand Jacobson)
147. Plaintiff re-alleges andincorporates each andevery allegation contained in
eachparagraph above as if fully set forth herein.
148. New York law is clear inthat "anattorney stands ina fiduciary relation to
the client."
149. One who has served as attorney for a corporation may not represent an
individual shareholder in a case inwhichhisinterests are adverse toother shareholders.
150. At all times relevant to this action, MJP and Jacobson purported to act as
legal counsel to DWAand tendered invoices to DWAfor their services.
151. As DWA's counsel, Jacobson and MJP owed Magder (who is DWA's
minoritymember) a fiduciary duty.
152. As set forth above, in substantially assisting Lee and MFCG with carrying
out their scheme to oust a Managing Member of DWA (Magder) for their personal
benefit, MJP andJacobson acted ina manner materially adverse tothe interests ofDWA
and Magder. To be sure, Jacobson and MJP failed to act responsibly to protect Magder's
interests.
153. Further, Section 13.15 of the DWAOA states that, "[i]f any action,
arbitration, or other proceeding is commenced among the parties to this agreement, then
Marc Jacobson P.C. shall not represent anyparty."
154. Nevertheless, Jacobson and MJP filed an action in New York State Court
against a Magder.
155. It is beyond dispute, that "attorneys historically have been strictly
forbidden from placing themselves in a position where they must advance, or even
appear to advance, conflicting interests." Code of Professional Responsibility DR 5-105
(22 NYCRR 1200.24) also strictly prohibits a lawyer from simultaneously representing
30
conflicting interests withoutconsent; and evidence ofconduct violating theCodemaybe
offeredto showthat a lawyer has breached a fiduciary duty.
156. Based on the foregoing failures, omissions and professional misconduct of
counsel whofostered thebusiness interests and advanced acompetitive positonofcertain
clients over a current client whom the attorney was still representing Jacobson and MJP have
egregiously breached fiduciary duties they owed the Plaintiff.
157. Byreason ofthe foregoing, Jacobson and MJPare liable to the Plaintiff for
damages, including the disgorgement and forfeiture of all legal fees and other
compensation, as well as any punitive damages occasioned by Jacobson's economic
duress, in an amount to be proven at trial.
COUNT TEN
FOR DISSOLUTION OF DWA UNDER N.Y. BCL 1104-A
(Against Lee and MFCG)
158. Plaintiff re-alleges and incorporates eachand everyallegation contained in
each paragraph above as if fully set forth herein.
159. The conduct of Lee and MFCG in eliminating the Plamtiff-minority
shareholder from the active operation of DWAthe corporation in which they had
participated and in which he had every expectation of being able to continue to
participateconstitutes oppressive conduct within themeaning ofthestatute governing
minority shareholders' right to demand dissolution of the corporation under General
Business Law 1104-a.
160. By reason for the foregoing, the Plaintiff demands a dissolution of the
Company pursuant toGeneral Business Law 1104-a, and an independent accounting
by a certified public accountant of the books, records, invoices, and each and every
transaction undertaken by DWA.
161. In this regard, Plaintiff has no adequate remedy at law.
31
COUNT ELEVEN
FOR RESCISSION OF THE PURCHASE AGREEMENT
(Against Lee and MFCG)
162. Plaintiff re-alleges and incorporates each andevery allegation contained in
each paragraph above as if fully set forth herein.
163. It has been held that notice of the rescission of a contract for abandonment
ornonperformance orfailure of considerationmay be made atany time within the statute
of limitations unless delay would be inequitable. (10 N. Y. Jur., Contracts, 411.)
164. To grant rescission is todeclare acontract void from its inceptionand to put
or restore the parties to status quo. Where there is a willful failure or refusal to afford a
partythat forwhich theybargained, a courtmayorder a rescission in toto withthereturn
of any exchanged consideration. The plaintiff seeks this relief in the alternative to her
request of an award of damages as premised upon breaches of terms set forth in the
Purchase Agreement.
165. The Plaintiff executed the Purchase Agreement concurrently with the
DWAOA and the Producer Agreement and all three contracts incorporate the other
agreements' terms by reference.
166. The Purchase Agreement provides that MFCG would purchase Magder's
and Cline's respective rights, copyrights and entitlements to the Work, while
simultaneously assigning "all rights and obligations granted to MFCG thereunder" to
DWA by way of an Assumption and Assignment Agreement, it further provides that
MFCG shall, inter alia, pay or cause to be paid to Cline and Magder $65,200.00 for the
rights in and to the Work, and by reference, assures Magder of her full and timely
producer compensation, as perthe fully incorporated Producer Agreement, aswell as her
due consideration under the DWAOA.
167. Yet another part of Magder's consideration for the Plaintiff's transfer of
rights was that she would retain control over theProject, such that nomaterial decisions
could be made without her approval, and so long as she was solely in charge of the
creative aspects of the Project.
32
168. Upon information and belief, MFCG induced Magder to enter the
agreements without the intentionof genuinely fulfilling its obligations at the timeit made
the contract. The defendants only made the contract toinduce thePlaintiff toassign her
copyright.
169. Although Magder performed under the Purchase Agreement, MFCG
breached it by failing topay Magder her financial compensation, including Contingent
Compensation and any expected profits thereunder, and denuded the Plaintiff of the
entirety of consideration she would receive under all three governing agreements in
exchange for her intellectual property rights in the Work.
170. The Purchase Agreement gave the plaintiff a specific right to demand
performance by defendants in exchange for her agreement to assign her copyright, in
default of which the Plaintiff was not restricted tolegal remedies but could, if shechose,
seek to avail herself of equitable remedies.
171. On July 25, 2014 Magder transmitted a written notice to Lee an MFCG,
informing the defendants oftheir breaches. Under the Purchase Agreement MFCG was
allotted ten (10) days to cure its contractual defaults.
172. Yet, MFCG refused to cure its defaults thereunder.
173. Accordingly, and by reason of the defendants' deceitful misconduct,
rescission of the transaction should be ordered; the court should declare the contract void
from its inception and to restore the parties tostatus quo.
COUNT TWELVE
FOR IMPOSITION OF A CONSTRUCTIVE TRUST OVER THE WORK
(Against MFCG, DWAand Lee)
174. Plaintiff re-alleges and incorporates each andevery allegation contained in
each paragraph above as if fully set forth herein.
175. A court may, in its equitable powers, impose a constructive trust over a
transfer of property in order to prevent unjust enrichment, where such property was
acquired or retained in violation of a fiduciary duty owed to the true owner of the
33
property. The plaintiff seeks this relief in the alternative to her request of an award of
damages as premised upon breaches of terms set forth in the Purchase Agreement.
176. To determine whether the imposition of a constructive trust is appropriate,
New York law generally requires that a party establish four elements: "(1) confidential or
fiduciary relationship; (2) an express or implied promise; (3) a transfer made in reliance
on that promise; and (4) unjust enrichment." These elements are subject to a balancing
test, where the absence of one does not automatically preclude remedy.
177. Magder entered into the Purchase Agreement with MFCG upon Lee's
behest, that without the transfer of her copyrights to the Work, the Project could not
proceed.
178. Such transfer was premised on the promise that upon transfer of the
copyright, the DWAOA and the Producer Agreement memorializing Magder's
compensation and creative capacity in the Project would be adhered to.
179. Upon transfer of Magder's copyright to MFCG and subsequent transfer to
DWA, the defendants proceeded to remove her from the Project altogether, while
simultaneously moving forward with the Project, exploiting the transferred Work.
180. Without a constructive trust imposed on Magder's copyright, she is left
without the copyright to the Work, compensation for her contribution, any future benefit
from the use of her Work, and any recourse to utilize her Work in the future.
181. Accordingly, to prevent unjust enrichment betweenparties in a confidential
relationship, the court should impose a constructive trust over the Work and prevent the
further exploitation of the Work by Lee, MFCG, and DWA.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiff respectfully pray that this Court enter a judgment against the
Defendants, jointly and severally as follows:
34
A. On Count One, pursuant to 17 U.S.C. 502, a preliminary and
permanent injunction resttaining Lee and MFCG, and each of their
respective officers, agents, employees, representatives, and parent
and subsidiary corporations from further infringement of the
Plaintiff's copyrighted Work and any derivative material; an order
directing Lee and MFCG to deliver to the Plaintiff or destroy all
unauthorized copies of the Work and derivative material; an
accounting and judgment against them; all profits received by each
from the use, distribution or sale of the infringing material including
derivative works thereof; all actual damages suffered by the
Plaintiffs as a result of their copyright infringement, as provided in
17 U.S.C. 504(b) or, in the alternative statutory damages provided
for in 17 U.S.C. 504(c); an award of all costs of this action together
with reasonable attorneys' fees (pursuant to 17 U.S.C. 505); such
other further relief as the Court deems just, proper and equitable;
B. On Count Two, Plaintiff demands actual damages plus
Defendants' profits from infringement, as will be proven at trial, her
costs, including reasonable attorneys' fees, pursuant to 17 U.S.C.
505 and a preliminary and permanent injunction pursuant to 17
U.S.C. 502 preventing further infringement of Plaintiff's
copyrights;
C. On Count Three, the Plaintiff seeks a resolution of this
controversy by a declaration of this Court, pursuant to the Federal
Declaratory Judgment Act, 28 U.S.C. 2201, 2202, the that the
Plaintiff is a rightful owner of the copyrights in the Work, including
any copies and derivative materials based on or derived from the
Work.
D. On Counts Four, Five, Six, and Seven, the Plaintiff demands
compensatory damages, in an amount to be determined at trial, but
which the Plaintiff believes to exceed $200,000.00, together with
attorneys' fees and costs;
E. On Counts Eight and Nine, the Plaintiff demands damages as
a result of breaches of fiduciary duties, including forfeiture of any
profits, fees or commissions, and punitive damages;
F. On Count Ten, the Plaintiff demands a dissolution of the
Company pursuant to General Business Law 1104-a, and an
independent accounting by a certified public accountant of the
books, records, invoices, and each and every transaction undertaken
by DWA.
35

G. On Count Eleven, the Plaintiff demands a rescission of the


Purchase Agreement in the form of an order declaring the contract
void fromits inceptionand restoring the parties to status quo.
H. On Count Twelve, the Plaintiff demands an imposition of
constructive trust over the Work in the form of an order declaring
suchtrust and preventingthe defendantsfromfurther exploiting the
trust property.
I. On all other Counts, the Plaintiff demands applicable interest,
costs and such other relief the Court deems just and proper.
DEMAND FOR TRIAL BY JURY
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, the Plaintiff hereby
demands a trial by jury.
Dated: New York, New York
October 22,2014
Sam P. Israel, P.C.
By: //: Sam P. Israel
Sam Israel (SPI0270)
Eleonora Zlotnikova (E2$814)
1 Liberty Plaza, 35* Floor
New York, New York 10006
Tel: (646) 787-9880 | Fax: (646) 787-9886
info@sampisrael.com
Attorneys forPlaintiffAndrea Magder
36