STATE OF MICHIGAN

6th JUDICIAL COURT

OAKLAND COUNTY CIRCUIT COURT

 

 

STEVEN C. AUSTIN,

                                                                                    C.A. No.                      -CZ

Plaintiff,

                                                                                    Hon.

v.                                                                                            

 

ANNE McCAFFREY,                                      

 

Defendant.

 

__________________________________________________________/

Law Offices of John Chupa & Associates, P.C.

JOHN G. CHUPA (P41777)

STEVE M. CLEMMONS (P64785)

Attorneys for Plaintiff

28535 Orchard Lake Rd., Suite 50

Farmington Hills, MI 48334

 (248) 324-7787

__________________________________________________________/

 

 

COMPLAINT AND JURY DEMAND

No civil action between these parties or other parties arising out of the transaction or occurrence alleged in the complaint has been previously filed in any Court.

 

 

 

Plaintiff, Mr. Steven C. Austin, for his complaint against Ms. Anne McCaffrey alleges as follows:

 

 

 (I) THE PARTIES

(1) Mr. Steven C. Austin (hereinafter referred to as “The Plaintiff”) at all relevant times hereto resided within this judicial circuit and owned and still owns a leather goods company which, at all relevant times hereto, operated within and still operates within this judicial circuit.  Particularly, this leather goods company was named and is still named “Austin Leather Works” (hereinafter referred to as “The Company”) and currently conducts business at 9530 Gibbs Road, Clarkston, Michigan 48348-1502.

(2) The Company , which is wholly owned by The Plaintiff at all relevant times hereto and which is currently wholly owned by The Plaintiff, produces various leather items for sale through the Internet, at The Company’s location, through catalogues, at various tradeshows, and through other channels of commerce. The Plaintiff and The Company each enjoy an international reputation for honesty, integrity, and high quality workmanship and such reputation is critical to the ability of The Plaintiff to maintain The Company as a going concern.

(3) Ms. Anne McCaffrey (hereinafter referred to as “The Defendant”), upon information and belief, currently resides at Dragonhold-Underhill, Timmore Lane, Newcastle County, Wicklow, Ireland, and further, upon information and belief, is the creator of certain material related to an imaginary world called “PERN”. As part of this material, it is believed that The Defendant and/or  one or more of The Defendant’s agents had certain rights (hereinafter referred to as “The Rights”) to a publication called THE DRAGONLOVER’S GUIDE TO PERN (hereinafter referred to as “The Publication”). The Defendant intentionally promotes the sale of The Material within this judicial circuit and has purposefully taken advantage of the laws of this judicial circuit to profitably and personally conduct business here. Particularly, The Material is part of an industry or market segment which is often referred to as “The Fantasy Market”.

 

(II) JURISDICTION AND VENUE

(4) The allegations included in Paragraphs one (1) through three (3) are repeated and are incorporated herein by reference, word for word and paragraph for paragraph.

(5) Jurisdiction is proper in this Court since the amount in dispute is greater than twenty-five thousand dollars, because the events giving rise to this dispute occurred within and arose within this judicial circuit, and because The Company and The Defendant, at all relevant times hereto, conducted business, and still conduct business, within this judicial circuit..

(6) Venue is proper in this Court since the injury to The Plaintiff occurred within this judicial circuit and since the complained of events occurred in this judicial circuit.

(III) BACKGROUND

(7) The allegations of Paragraphs one (1) through six (6) are repeated and are incorporated herein by reference, word for word and paragraph for paragraph.

(8) On or about March of 1995, The Plaintiff contacted The Defendant for the purpose of licensing some of the rights to The Material from The Plaintiff (see the letter which is attached as Exhibit “A”, which is fully and completely incorporated herein by reference, word for word and paragraph for paragraph, and which is hereinafter referred to as “The Letter”).

(9) Hearing no response to The Letter, The Plaintiff contacted The Defendant, both telephonically and by means of electronic mail and obtained certain rights to The Material (see, by way of example and without limitation a copy of an electronic mail which is attached as Exhibit “B” and which is fully and completely incorporated herein by reference, word for word and paragraph for paragraph.

(10) The Plaintiff also contacted at least one of the agents of The Defendant, such as Mr. William Fawcett (hereinafter referred to as “The Agent”), and obtained certain rights to The Material from The Agent in return for the initial sum of one dollar and an annual royalty fee (see, by way of example and without limitation, the documents which are collectively attached as Exhibit “C”and which are fully and completely incorporated herein by reference, word for word and paragraph for paragraph.  Other agents also gave The Plaintiff certain rights in and to The Material.

(11) On or about June of 1995, The Plaintiff told The Defendant about the agreement between The Plaintiff and The Agent and about the other rights the other agents gave to the Plaintiff. The Defendant congratulated The Plaintiff on obtaining the agreement with The Agent, about obtaining these other rights, and actively encouraged The Plaintiff to use these rights to make, sell, and otherwise commercialize leather goods bearing some of the imagery from The Material and, in fact, The Defendant told The Plaintiff that such activities would increase the sale of The Material and greatly benefit her.

(12) In reasonable reliance upon the rights obtained from The Defendant, from The Agent, and obtained from the other agents, and in reasonable reliance upon the foregoing conversation set forth in paragraph eleven (11) above, The Plaintiff began to invest relatively large sums of money in making leather goods bearing some of the imagery of The Material, in promoting the goods and The Material, and in promoting the various works of The Defendant by way of print and electronic advertisements, at the sole cost and expense of The Plaintiff and with the advice and consent of The Defendant, of The Agent, and of the other agents.

(13) After the passage of over six years and with full knowledge of the foregoing facts, and after continually and actively encouraging The Plaintiff to make the foregoing leather goods and to otherwise utilize the foregoing acquired rights, The Defendant began, both personally and through at least one other agent, to contest the fact that The Plaintiff had the foregoing rights and recently began sending letters, such as the letter which is attached hereto as Exhibit “D” and which is fully and completely incorporated herein by reference, word for word and paragraph for paragraph, and began to make other false and defamatory statements to various actual and potential customers of The Plaintiff’s and those active in the promotion and sale of goods in The Fantasy Market, to the effect  that The Plaintiff did not have any of the foregoing rights and was, in fact, wrongfully and unjustifiably infringing upon her rights in violation of certain civil and potentially criminal statutes. These activities have wrongfully injured The Plaintiff by an amount to be proven at trial and were done with the knowledge that the statements were false and/or with a reckless disregard for the truth.

FIRST CAUSE OF ACTION -

(IV) REQUEST FOR DECLARATORY JUDGMENT

(14) The allegations included in Paragraphs one (1) through thirteen (13) are repeated and fully and completely incorporated herein by reference, word for word and paragraph for paragraph.

(15) By reason of the foregoing, an actual controversy has arisen and exists with respect to whether The Plaintiff has rights to The Material and/or whether The Defendant is barred by the equitable doctrines of Laches and Estoppel to contest The Plaintiff’s foregoing use of The Material.

(16) The Plaintiff respectfully requests a declaratory judgment to the effect that he has rights to use imagery from The Material in connection with the production of leather goods by The Company or by any other company owned by The Plaintiff and/or for a declaration that The Defendant is barred from contesting the continued use of The Material by the Plaintiff; and for such other relief as may be lawful and proper.

SECOND CAUSE OF ACTION

(V) BREACH OF CONTRACT

(17) The allegations included in Paragraphs one (1) through sixteen (16) are repeated and fully and completely incorporated herein by reference, word for word and paragraph for paragraph.

(18) By reason of the foregoing, a valid contract existed by and between The Plaintiff and The Defendant under which The Plaintiff obtained certain rights to The Material, such as and without limitation, the right to use imagery from The Material upon leather goods (hereinafter referred to as “The Agreement”).

 (19) The Defendant has breached The Agreement and has caused harm and injury to The Defendant in an amount to be determined at trial.

 

THIRD CAUSE OF ACTION -

(VI) LIBEL

(20) The allegations included in Paragraphs one (1) through nineteen (19) are repeated and fully and completely incorporated herein by reference, word for word and paragraph for paragraph.

(21) By reason of the foregoing, The Defendant, personally and/or through one or more of her agents, has committed libel against The Plaintiff and has injured The Plaintiff in an amount to be determined at trial.

FOURTH CAUSE OF ACTION -

(VII) TORTIOUS INTERFERENCE WITH ACTUAL AND PROSPECTIVE

BUSINESS RELATIONSHIPS

(22) The allegations included in Paragraphs one (1) through twenty-one (21) are repeated and fully and completely incorporated herein by reference, word for word and paragraph for paragraph.

(23) The Plaintiff had a valid business relationship with several customers under which The Plaintiff profitably provided leather products to these customers.  The Plaintiff had a legitimate expectancy of increasing his base of customers and increasing the profitability of The Company.

(24) By reason of the foregoing, The Defendant, through one or more of her agents, and with knowledge of these existing business relationships and with knowledge of the expectancy that The Plaintiff had to profitably increase the number of such business relations, intentionally and wrongfully interfered with these business relationships, thereby causing these current business relationships to be terminated and the expectations of the other future business relationships to be destroyed.

(25) The Defendant’s actions have caused damage to the Plaintiff in an amount to be determined at trial.


 

WHEREFORE, The Plaintiff respectfully requests the following relief in addition to that which has been requested above:

(1) attorneys’ fees and costs;

(2) a declaration that this is an exceptional case and accordingly an enhancement of damages;

(3) such other damages as The Plaintiff may show himself entitled to; and

(4) an injunction preventing The Defendant from contacting any current or future customers of The Plaintiff regarding the use of The Material, by The Plaintiff.

 

                                                                        Respectfully Submitted:

 

            Dated: _________                              __________________________________

                                                                        John G. Chupa (P41777)

                                                                        Steve M. Clemmons (P64785)

                                                                        Law Offices of John Chupa & Associates, P.C.

                                                                        28535 Orchard Lake Road, Ste. 50

                                                                        Farmington Hills, Michigan 48334

                                                                        (248) 324-7787

                                                                                   

 

 


 

DEMAND FOR JURY TRIAL

The Plaintiff demands a trial by jury on all issues so triable.

                                                           

Respectfully Submitted:

 

Dated: _________                              __________________________________

                                                            John G. Chupa (P41777)

                                                            Steve M. Clemmons (P64785)

                                                            The Law Offices of John Chupa & Assoc.

                                                            28535 Orchard Lake Road, Ste. 50

                                                            Farmington Hills, Michigan 48334

                                                            (248) 324-7787

                                                                                   


I HAVE READ AND UNDERSTAND THE ABOVE COMPLAINT AND ATTEST TO THE FACT THAT ALL OF THE STATEMENTS MADE IN THE COMPLAINT ARE TRUE AND CORRECT IN ALL RESPECTS.

 

 

Mr. steven c. austin

 

 

___________________________                                                              ________________________

Signature                                                                                               Date