Robert V. Baer v. David Chase

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2425
ROBERT V. BAER,
Appellant
v.
DAVID CHASE; CHASE FILMS, INC.,
A Delaware Corporation;
DC ENTERPRISES, INC.
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 02-cv-02334)
District Judge: Honorable Joel A. Pisano
Argued March 7, 2006
Before: RENDELL and AMBRO, Circuit Judges,
and SHAPIRO, District Judge*.
(Filed: May 1, 2006)
Michael S. Kasanoff
Suite 321
157 Broad Street
P.O. Box 8175
Red Bank, NJ 07701
*Honorable Norma L Shapiro, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.

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2
Harley D. Breite
562 Black Oak Ridge Road
Wayne, NJ 07470
Robert V. Baer [ARGUED]
4 Laurel Road
Wayne, NJ 07470
Counsel for Appellant
Peter L. Skolnik
Lowenstein Sandler
65 Livingston Avenue
Roseland, NJ 07068
Counsel for Appellees
OPINION OF THE COURT
RENDELL, Circuit Judge.
Plaintiff Robert Baer claims that he is entitled to compensation for suggestions and
advice that he gave to defendant Robert Chase on a project that ultimately became the
television series The Sopranos. We first heard this case in 2004, after the District Court
had granted Chase summary judgment on all of Baer’s claims. We affirmed in part, but
reversed and remanded the order as to Baer’s quantum meruit, or quasi-contract, claim.
On remand, the District Court again granted summary judgment in Chase’s favor. Baer
now appeals. Because we conclude that the District Court misconstrued our 2004
opinion, we will reverse, grant summary judgment to Baer on the narrow issue before us,
and remand.
I.

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1Chase had sent the draft script to Baer for comments fourteen months earlier, in
December 1995. Baer’s letter was fourteen paragraphs long, with seven paragraphs
devoted to commentary on Chase’s draft script. Baer offered mostly positive feedback,
commending Chase for “‘transform[ing] an innovative idea into a marvelous
screenplay.’” Baer v. Chase, No. Civ. A. 02-2334, 2005 WL 1106487, at *8 (D.N.J. Apr.
29, 2005) (quoting Baer’s February 10, 1997 letter). He discussed various aspects of the
draft script, including the narrative device, the characters, the dialogue between “Tommy
Soprano” and “Melfi” and the alliance between Soprano’s mother and uncle. Baer
expressed some initial reservations, but ultimately concluded that the script was well done
and praised Chase for his efforts. Id. The remaining paragraphs of the letter described
events in Baer’s life over the fourteen months since he and Chase had last communicated,
mentioned a script that Baer was planning to send Chase for critique, and noted Baer’s
hope that he and Chase might meet up for a meal if Baer returned to Los Angeles. Id. at
*7.
3
The District Court originally concluded that Baer’s quasi-contract claim was time-
barred. Baer v. Chase, No. 02-CV-2334, 2004 WL 350050, at *9 (D.N.J. Feb. 20, 2004).
Baer filed his complaint on May 15, 2002. Id. at *1. The parties agreed that, under New
Jersey law, a six-year statute of limitations applied, and that Baer’s “quasi-contract claim
accrued, if at all, when his final services were rendered.” Id. at *9. Baer testified in a
deposition that all of his services were rendered by the end of October 1995. In a later
certification accompanying his opposition to Chase’s motion for summary judgment,
however, Baer claimed that his deposition testimony was “mistaken,” and that the last
service that he rendered was a letter, dated February 10, 1997, offering Chase feedback
on a draft Sopranos script.1 Id. The District Court declined to consider Baer’s
certification because it conflicted with sworn testimony, and was thus a “sham affidavit.”
See id. at *9 (citing Martin v. Merrell Dow Pharms., Inc., 851 F.2d 703, 705-06 (3d Cir.
1988) (holding that a district court may disregard a subsequent affidavit where the

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2We note at the outset that our dissenting colleague disagrees as to the meaning and
import of these footnotes, and we recognize that reasonable minds could easily do so.
4
changed testimony regards subject of “considerable importance” and is “the subject of
repeated questioning”)). It accordingly concluded that Baer’s services were last rendered
as of October 1995, and granted summary judgment to Chase. Baer, 2004 WL 350050,
at *9.
On appeal, we disagreed with the District Court’s refusal to consider the February
10, 1997 letter, believing that the situation was distinguishable from that presented in
Martin, and held that the District Court “should have analyzed the letter and the
circumstances surrounding it and Baer’s certification when ruling on the summary
judgment motion on the statute of limitations issue.” Baer v. Chase, 392 F.3d 609, 626
(3d Cir. 2004). We reversed the grant of summary judgment on this claim, and remanded
“the question of whether Baer presented a timely and otherwise valid quasi-contract
claim.” Id.
Along the way, however, we provided additional commentary on the parties’
arguments and instructions to the District Court in two footnotes. 2 In footnote 5, we
addressed Chase’s alternative arguments. Chase argued that the letter could not be
considered a compensable service as a matter of law because it “had no value” to him;
according to Chase, “it contained only cursory observations and laudatory phrases about
his work.” Id. at n.5. We disagreed, and cautioned the District Court not to view the
letter in isolation in analyzing whether it was the “last service rendered” for statute of

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5
limitations purposes:
Chase premises his argument on the assumption that in analyzing the statute
of limitations for quantum meruit purposes we should dissect the last service
rendered to deem if it provided value to the opposing party.
We will not affirm the summary judgment on that basis. First, Baer’s
letter describes the aspects of the screenplay that he believes were successful,
the parts to which he related personally, and what humor worked, and
provided encouragement to continue with the project. . . . We will not write
these contributions off, as Chase attempts to do, as “empty flattery.”
Additionally, we will not dissect each interaction between litigants to
quantify the precise value of each correspondence or service rendered. The
exchange of ideas and services should not be viewed as incremental,
segregable interactions that we can assess individually for purposes of the
statute of limitations. A separate issue would arise if a litigant sent a
correspondence or rendered a “sham service” in an attempt to avoid the
statute. That situation, however, does not describe the circumstances before
us. We will not engage in Chase’s request to judge whether the February
letter, taken in isolation, was a “compensable service.” We are satisfied that
Baer sent the letter and Chase received it, and thus at least at this time it will
serve as the “last service rendered” for purposes of the statute of limitations
calculus.
Id. (emphasis added).
In footnote 6, we declined to order the District Court to enter summary judgment
on the timeliness issue in Baer’s favor. We noted that Baer had not moved for summary
judgment in the District Court, and explained our ruling as follows:
[W]e go no further with respect to the statute of limitations issue than to hold
that the district court should not have disregarded Baer’s certification and it
should have considered the February 10, 1997 letter. Therefore our analysis
in supra note 5, will not preclude the district court on a fuller examination of
the facts from coming to a conclusion contrary to ours as we write on the point
merely for the limited purpose of addressing Chase’s argument that we should
affirm the summary judgment on a different basis than that of the district

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3The dissent takes us to task for assuming that our reference to “we” in footnote 5 was
a directive to the District Court. The footnote did convey our view of how the letter
should be analyzed, but we would expect our view to be heeded on remand.
6
court.
Id. at n.6.
On remand, the District Court concluded that we had instructed it to reconsider the
timeliness of Baer’s claim, although it noted that the footnotes in our opinion had
“confused the matter.” Baer v. Chase, No. Civ. A. 02-2334, 2005 WL 1106487, at *4
(D.N.J. Apr. 29, 2005). In addressing this issue, the District Court found that the “basic
question to be answered” was “whether the February 10, 1997 letter amounts to a
rendition of services.” Id. at *8. The Court analyzed the contents of the letter and found
that it did not amount to a “service” because it did not “confer a benefit” to Chase. Id. at
*9. Accordingly, it once again concluded that Baer’s cause of action accrued no later
than October 1995, and that it was time-barred. The District Court again granted
summary judgment in Chase’s favor. Id.
II.
We believe that the District Court misunderstood our last opinion. While we
remanded “the question of whether Baer presented a timely and otherwise valid quasi-
contract claim,” Baer, 392 F.3d at 626, we did so with a clear admonition that the District
Court was not to consider the value of the letter in isolation. 3 On remand, however, it did
just that. The District Court focused solely on whether the February 10, 1997 letter itself

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4The dissent contends that the “measure” of a service is whether it confers “value.” We
agree; value is the measure for purposes of proving a prima facie claim. However, value
is not determinative of whether, or when, a service was rendered, and therefore has no
place in the analysis of when a claim accrued for purposes of the statute of limitations.
5We allowed that “a separate issue would arise” if Chase had produced evidence on
remand that Baer had sent the letter “in an attempt to avoid the statute.” Baer, 392 F.3d
at 626 n.5. For example, Chase might have shown that he had specifically told Baer not
to respond to the script, but that Baer wrote the 1997 letter anyway to bring his claim
within the statute of limitations. Under such circumstances, the District Court could have
granted summary judgment to Chase in keeping with our opinion.
7
provided something of value, rather than considering whether there was some factual
basis for concluding that it should not constitute the last service rendered. This approach
distorts the statute of limitations analysis. Although a service must confer value to be
compensable under a quantum meruit theory, examining the benefit conferred by the last
act tests the merits of the claim, not the date that the cause of action accrued for purposes
of the statute of limitations. The issue for statute of limitations purposes is when the last
service–regardless of its value–was rendered or performed in good faith. 4
In footnote 5 of our last opinion, we examined and rejected Chase’s argument that
the letter was not a “service” as a matter of law. Id. at n.5. In footnote 6, we stated that
our analysis in footnote 5 would “not preclude the district court on a fuller examination
of the facts from coming to a conclusion contrary to ours.” Id. at n.6 (emphasis added).
By this we left open the possibility that different facts might come to light demonstrating
that the letter was not a service rendered. We simply made it possible for the District
Court to consider facts or alternative theories that were not before us. 5

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6In connection with its assessment of the potential usefulness of the letter to Chase, the
District Court concluded that the letter arrived “too late.” However, the evidence
establishes that the letter arrived just as Chase was re-working his script to submit it to
HBO.
8
Having reviewed the record, however, we conclude that the parties did not adduce
any new facts on remand that would undermine the view that February 10, 1997 was the
date of the last service rendered by Baer. The three new certifications that Chase
introduced did little more than establish a timeline of events surrounding Chase’s receipt
of Baer’s letter. See App. 1225-56. These events speak only to the value or usefulness of
the letter to Chase, not to its status as part of the services rendered. 6 As we noted in our
last opinion, “we will not dissect each interaction between litigants to quantify the precise
value of each correspondence or service rendered.” Baer, 392 F.3d at 626 n.5.
Examining Baer’s course of conduct as a whole, we see no reason why the February 10,
1997 letter should not be considered the last step taken in the services that he rendered.
Thus, we once again conclude that the February 10, 1997 letter was the “last service
rendered” for purposes of the statute of limitations, and that Baer’s quasi-contract claim
was timely.
III.
In light of the foregoing, we will reverse the District Court’s order granting
summary judgment to Chase, direct the Court to enter summary judgment in favor of
Baer on the statute of limitations issue, and remand for further proceedings consistent
with this opinion.

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AMBRO, Circuit Judge, dissenting
I empathize with Judge Pisano’s predicament (and soon to be frustration). To
review, on summary judgment Judge Pisano ruled against Baer on each of his claims —
ten in all. Our Court affirmed all that Judge Pisano did except for the quasi-contract
claim. We remanded that issue to the District Court for consideration of the February 10,
1997 letter that Baer wrote to Chase fourteen months after Chase sent Baer a script that,
by 1997, was several stages more developed. In so doing, our Court (per another panel)
told Judge Pisano to “analyze[] the [February 10, 1997] letter and the circumstances
surrounding it . . . when ruling on the summary judgment motion on the statute of
limitations issue.” Baer v. Chase, 392 F.3d 609, 626 (3d Cir. 2004) (“Baer I”). Our
Court then added two footnotes (5 and 6) that “confused the matter.” Baer v. Chase, 2005
WL 1106487, at *4 (D.N.J. 2005) (“Baer II”). As the District Court noted,
[t]he Court of Appeals, in Note 5, declines to address the
merits of Chase’s substantive defenses raised in the
alternative to the quasi-contract claim. However, in doing so
the Court appears to discuss and dismiss those very
arguments. Moreover, when the Court of Appeals writes that
“at least at this time [the February 10, 1997 letter] will serve
as the ‘last service rendered’ for purposes of the statute of
limitations calculus,” it appears to conclude that this [District]

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Court need not determine whether the quasi-contract claim
was timely. In light of Note 6, however, it is apparent that the
Court of Appeals made no such conclusion. . . . [It] clarifies
that it did not intend to rule on Chase’s alternative arguments
[as to the statute of limitations barring Baer’s quantum meruit
claim even with the February 10, 1997 letter in evidence]
because they were not the subject of . . . [the District] Court’s
prior opinion. Moreover, the Court of Appeals acknowledges
that this Court is free to accept Chase’s alternative arguments
upon fuller examination “with respect to the statute of
limitations issue.”
Id. at *5-6 (emphasis in original).
I agree with this reading of our troublesome footnotes. In note 5 of our prior
opinion, we stated (in the context of arguments that had never been presented to the
District Court) that “we will not dissect each interaction between litigants to quantify the
precise value of each correspondence or service rendered” because “[t]he exchange of
ideas and services should not be viewed as incremental, segregable interactions that we
can assess individually for purposes of the statute of limitations,” and thus since “Baer
sent the letter and Chase received it, . . . at least at this time it will serve as the ‘last

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service rendered’ for purposes of the statute of limitations calculus.” Baer I, 392 F.3d at
626 n.5 (emphases added). We then made clear in note 6 that our analysis was limited
solely to our consideration of these arguments “for the limited purpose of addressing
Chase’s argument that we should affirm the summary judgment on a different basis than
that of the district court.” Id. at 626 n.6. We went out of our way to state that our holding
went “no further with respect to the statute of limitations issue than to hold that the
district court should not have disregarded Baer’s certification and it should have
considered the February 10, 1997 letter,” but that the District Court was, upon “a fuller
examination of the facts,” free to reach “a conclusion contrary to ours” on the issue of
whether the letter was the last service rendered. Id.
I think the District Court’s interpretation of these convoluted instructions — that
our dicta regarding whether the letter was the last service rendered was tentative, intended
solely to dispose of the arguments prematurely raised on appeal, and that, upon a proper
motion for summary judgment on remand, the District Court could consider the factual
record and come to its own conclusion — is both entirely reasonable and fully consistent
with what it did. Alas, my colleagues in the majority do not agree. They believe that
what our Court did in its prior opinion was to “conclude that the February 10, 1997 letter
was the ‘last service rendered’ for purposes of the statute of limitations, and that Baer’s
quasi-contract claim was timely.”
In reaching this conclusion, my majority colleagues decide that the District Court
should not have “examin[ed] the benefit conferred by the last act” because to do so “tests

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the merits of the claim, not the date that the cause of action accrued for purposes of the
statute of limitations” (emphasis in original). This is the second source of my
disagreement with the majority opinion. In my view, determining whether an act is the
last service rendered for purposes of the statute of limitations requires some consideration
of the “merits” of the claim. This analysis is consistent with the limited nature of the
statute of limitations inquiry and does not impermissibly intrude on the plaintiff’s case-in-
chief.
To recover on a quasi-contract theory under New Jersey law, a plaintiff must prove
that: (1) he performed services in good faith; (2) the intended beneficiary accepted the
services; (3) he had a reasonable expectation of compensation for the services rendered;
and (4) the value of the services is reasonable. Goldberger, Seligsohn & Shinrod, P.A. v.
Baumgarten, 875 A.2d 958, 964 (N.J. App. Div. 2005). As noted in our first opinion in
this case, New Jersey’s six-year statute of limitations for recovery in quantum meruit runs
from the date of the “last rendition of services.” Baer I, 392 F.3d at 622-23 (citing cases).
A “service” in this context is not simply any action that one party directs at another.
Rather, in New Jersey and elsewhere, the measure of a “service” is whether the act
confers “value” on the intended beneficiary. See Friedlander v. Gross, 164 A.2d 761, 763
(N.J. App. Div. 1960) (noting that it was “elementary that plaintiff was not entitled to
recover [in quantum meruit] the fair value of the work done . . . since the work . . . had no
value to the defendant”); see also Midcoast Aviation, Inc. v. Gen. Elec. Credit Corp., 907
F.2d 732, 745 (7th Cir. 1990) (“The correct measure for quantum meruit recovery is

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expressed by the amount which the court considers defendant has been unjustly enriched
at the expense of plaintiff. . . . [This] is generally the lower of these two: the economic
cost to plaintiff of providing a benefit or the economic enrichment of defendant in
receiving it.”).
The majority relies on our statements in Baer I — that “we will not dissect each
interaction between litigants to quantify the precise value of each correspondence or
service rendered” because “[t]he exchange of ideas and services should not be viewed as
incremental, segregable interactions that we can assess individually for purposes of the
statute of limitations,” and thus since “Baer sent the letter and Chase received it, . . . at
least at this time it will serve as the ‘last service rendered’ for purposes of the statute of
limitations calculus,” 392 F.3d at 626 n.5 — for its holding that the District Court was
constrained (absent some new evidence that Baer’s letter was a sham or, perhaps, never
sent at all) to find that the letter was the last service rendered. But not only were our
statements in Baer I dicta (since none of these arguments had been presented to the
District Court), they were not supported by citations to New Jersey law.
As I read New Jersey law, the statute of limitations runs from the date of the last
rendition of services, and this requires some consideration of whether an act was a
“service” as that term in understood in the context of quasi-contracts. I thus do not agree
with the majority’s statement that “[t]he issue for statute of limitations purposes is when
the last service — regardless of its value — was rendered or performed in good faith”
(emphasis in original), because in New Jersey an act is not a “service” unless there was

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7 Obviously, I disagree with the majority’s statement that “value is not determinative
of whether, or when, a service was rendered, and therefore has no place in the analysis of
when a claim accrued for purposes of the statute of limitations” (emphasis in original).
To be sure, as I explain below, consideration of whether the value conveyed by a service
resulted in unjust enrichment is only relevant when considering the merits of a claim for
quantum meruit recovery. But in deciding whether an act is a “service” in the first place,
the existence of some value is (I think) the determinative factor.
14
some value to begin with.7
To be sure, our dicta in Baer I that the determination of whether an act qualifies as
a “service” for purposes of the statute of limitations cannot be made in isolation is, to
some extent, correct. But in my view the statement merely establishes the unremarkable,
common-sense proposition that one cannot isolate a particular act (in this case, Baer’s
February 1997 letter) and determine whether it conveyed some value on the recipient
without reference to anything that came before in the parties’ relationship. It would be
wrong, for example, if the District Court treated the two parties as strangers and the letter
as a segregable act devoid of context. The District Court did not commit such an error. It
merely (and properly, I submit) looked to the substance of the letter and the circumstances
surrounding its receipt to determine whether, in light of all that came before in the parties’
relationship, it constituted a “service” that had some “value” to Chase such that it could
be counted as the start of the limitations period. The District Court certainly did not, as
Baer suggests in his brief, treat the letter “as though Baer was a stranger to Chase who
had lifted the script out of a trash can and sent out an unsolicited critique.” Appellant’s
Br. at 53.

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Yet the majority faults the District Court nonetheless, and in doing so takes our
dicta in Baer I a step further than I would. In the majority’s view, because Baer and
Chase had some prior relationship, it makes no difference at this stage whether Chase
obtained any value from the letter (and thus whether it was a “service” rendered to
Chase); such an inquiry, we are told, would pre-judge the “merits” of this case. This is, I
think, more akin to a “last act” test than a “last service rendered” test. Indeed, under the
majority’s reasoning, I find it difficult to conceive of an act that would not serve as the
“last service rendered” for statute of limitations purposes, as long as, at some time over
the course of the parties’ dealings, one performed a service for the other.
I do not, of course, mean to suggest that the full merits of Baer’s claim must be
litigated for a court to determine whether his claim is timely. We do not need to know,
for example, whether the value Chase received, if any, caused unjust enrichment, which is
the touchstone of quantum meruit recovery. See Weichert Co. Realtors v. Ryan, 608
A.2d 280, 285-86 (N.J. 1992). But that is far from saying we do not need to know if
Baer’s final alleged act was a “service” at all. The District Court appropriately analyzed
this question, and I do not read Baer I to foreclose such consideration.
I am persuaded that the District Court was entitled to consider the value of the
letter to Chase in order to determine whether the limitations period began in February
1997 or earlier. The Court concluded that Baer’s February 1997 letter to Chase was not
the last service rendered; indeed, it was not a “service” at all because it arrived far too late
to be of any use to Chase. In keeping with our instruction that the District Court could

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reach such a conclusion “on a fuller examination of the facts,” Baer I, 392 F.3d at 626
n.6, it considered additional certifications by Chase, and Baer submitted no new facts.
Upon that record, I do not see how the Court could have avoided denying Baer’s motion
for partial summary judgment on the statute of limitations issue — especially since, on
consideration of such a motion by Baer, all facts were to be viewed in the light most
favorable to Chase. I surely do not think the Court’s “fuller examination of the facts” was
so deficient as to merit reversal. For these reasons, I respectfully dissent.

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