Sidney H. Radner vs. John Gaughan & Associates

This action brought by Sidney Radner, owner of the legendary Houdini Water Torture Cell was dismissed on a technicality by a California judge for the reason being that Gaughan claimed he never did business in Nevada. Radner at the time of this filing, was in his 80s and had spent more than $50,000 on legal fees and investigations trying to get Gaughan to answer his complaint.  Radner and his family decided not to allocate additional funds to continue the case. This editor cannot write in civil terms what Mr. Radner thought of Gaughan regarding the allegations in this lawsuit.  Gaughan never explained his actions or remedied the issue to Mr. Radner's satisfaction.  This lawsuit is a part of history and shall remain posted until Gaughan responds with the truth in the matter.

MICHAEL J. McCUE (Nevada Bar #6055)

LEWIS AND ROCA LLP

Attorneys for Plaintiff

Sidney Radner

  UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

 

 

 

SIDNEY RADNER and HOUDINI’S MAGIC SHOP, INC.,

                                     Plaintiff,

             vs.

 JOHN GAUGHAN, an individual, and JOHN GAUGHAN & ASSOCIATES, a California corporation,

 

                                    Defendants.

 

 

 

Case No. ___________

 

 

COMPLAINT

 

(JURY TRIAL DEMANDED)

 

            Plaintiff SIDNEY RADNER and HOUDINI’S MAGIC SHOP, INC., for their complaint against John Gaughan and John Gaughan & Associates, alleges as follows.

NATURE OF THE CASE

            This is an action by Plaintiff Sidney Radner, a prominent collector of memorabilia and illusions of legendary magician and escape artist Harry Houdini, against Defendant John Gaughan, a prominent restorer of magical illusions, and his company John Gaughn & Associates.  This action arises out of Defendants’ unauthorized creation of a replica of the Houdini Chinese Water Torture Cell illusion while the illusion was being restored for Radner and Defendants’ failure to return the Houdini Trapeze Illusion loaned by Radner to Gaughan.  Plaintiff Houdini’s Magic Shop, Inc.’s claim against Defendants arises from their breach of the contract with Radner of which Houdini’s Magic Shop, Inc. was a third-party beneficiary. 

JURISDICTION

1.                  This Court has subject matter jurisdiction based on diversity of citizenship. The Plaintiff Sidney Radner is a resident of the State of Massachusetts. Plaintiff Houdini’s Magic Shop, Inc. is a corporation formed under the law of the State of Nevada with its principal place of business in Las Vegas, Nevada.  Defendant John Gaughan is a resident of the State of California.  Defendant John Gaughan is a corporation formed under the law of the State of California with its principal place of business in Los Angeles, California.

2.                  This Court has generic and specific personal jurisdiction over Defendants.  General jurisdiction is based on the Defendants’ continuous and systematic transaction of business in the State of Nevada (including, but not limited to, contracting to build illusions for magicians in the State of Nevada and shipping illusions to the State of Nevada, including, but not limited to, the Houdini water torture cell).   Specific jurisdiction is based on the fact that Plaintiff Houdini Magic Shop, Inc.’s claims arise out of Defendants’ contacts with the State of Nevada.

THE PARTIES

3.                  Plaintiff Sidney Radner is a famous escape artist trained by Harry Houdini’s brother, Theodore Hardeen.  Radner is the honorary curator of the Houdini Museum, the founder of the Houdini Historical Society, and the owner of the largest collection of Houdini memorabilia. 

4.                  Plaintiff Houdini’s Magic Shop, Inc. was the owner and operator of the Houdini’s museum located at the Canal Shops at the Venetian resort hotel casino in Las Vegas, Nevada.

5.                  Defendant John Gaughan is a well-known restorer and builder of magic illusions and a collector of Houdini memorabilia.

6.                  Defendant John Gaughan & Associates is a company owned and operated by John Gaughan.

FACTUAL ALLEGATIONS COMMON TO ALL COUNTS

7.                  Harry Houdini (“Houdini”) is the most famous magician and escape artist in history.  Houdini first presented his illusion known as the Chinese Water Torture Cell (“Water Torture Cell”) in or around 1911 at Circus Busch in Berlin, Germany.  The Water Torture Cell was the featured illusion in Houdini’s performances for the following fifteen years. 

8.                  Houdini’s Water Torture Cell is one of the most famous illusions in the history of magic.  The cell is 59 inches tall, 26.5 inches wide, and weighs more than 1,600 pounds.  The cell is constructed primarily of Honduras mahogany and steel with brass fittings.  The cell houses glass that is ½ inch thick.  The cell holds approximately 250 gallons of water.  The Water Torture Cell has been valued at approximately $1,500,000.

9.                  Houdini presented the Water Torture Cell by first allowing a committee selected from the audience to inspect the cell and the lid.  After the inspection was completed, Houdini was handcuffed and then his ankles were secured in the lid of the cell.  The lid was then raised into the air with Houdini hanging by his ankles.  Houdini was then lowered into the water-filled cell.  After Houdini was completely immersed, the lid of the cell was locked.  Through the glass front of the cell, the audience could see Houdini struggling as a curtain was drawn around the cell to conceal the secret of the escape.  Houdini’s assistants stood by with axes ready to break the glass in the event that Houdini was unable to escape.  Approximately two minutes later, the water-drenched Houdini parted the curtains and presented himself to the audience.

10.             Upon information and belief, the secret of the Water Torture Cell is known to only a few magicians in the world, including Radner.

11.             The Water Torture Cell was willed from Harry Houdini to his brother Theodore Hardeen, who acquired the cell after Harry Houdini died in 1926.

12.             In June 1942, Theodore Hardeen gave the Water Torture Cell to Radner, who as then an escape artist and a friend of Hardeen.  Radner stored the Water Torture Cell in his house in Massachusetts from 1942 until 1971.

13.             In 1971, Radner shipped the Water Torture Cell to the Houdini Magical Hall of Fame in Niagra Falls, Ontario, Canada, where the cell was on display until 1991. 

14.             In 1991, the Houdini Magical Hall of Fame decided to have the water torture cell restored.  They asked John Gaughan to restore the cell to its original condition.  The cell was then shipped to Gaughan for restoration.  Gaughan restored the Water Torture Cell and he was compensated for the restoration. After Gaughan completed the restoration, the Water Torture Cell was displayed at the Conference on Magic History in North Hollywood, California.  This was the first time the cell was displayed in the United States since 1926. The Water Torture Cell was later returned to the Houdini Magical Hall of Fame in Niagra Falls.

15.             In May 1, 1995, the Houdini Magical Hall of Fame was ravaged by fire and the Water Torture Cell was partially destroyed.

16.             Radner asked Gaughan to restore the Water Torture Cell.  Radner shipped the remnants of the Water Torture Cell to Gaughan.  Radner later also shipped to Gaughan an extra glass panel that Houdini held in reserve in the event that any of the original glass panels broke. The glass panel was shipped in the original crate in which Houdini stored the glass. The crate bore the name “HOUDINI” and the words “MUSICAL INSTRUMENTS” to avoid bringing unwanted attention to the crate.

17.             Gaughan worked on restoring the Water Torture Cell. During this time period, Radner and Geno Munari (owner of Houdini’s Magic Shop, Inc.) visited Gaughan’s studio in California and noticed that Gaughan had unused scrap pieces from the Water Torture Cell in a pile on the studio floor. Radner instructed Gaughan to return the unused pieces of the Water Torture Cell to Radner, because the pieces were valuable.

18.             In 2001 or 2002, Radner shipped a Houdini illusion known as the Trapeze Artist to Gaughan for the purpose of allowing Gaughan to see the apparatus.

19.             During the period in which Gaughn was working on the restoration, Gaughn represented to Radner during a brief conversation in person that Gaughn was creating a small non-working “mock-up” of the Water Torture Cell for Gaughan’s personal use.

20.             In or around October 2002, Gaughan completed the restoration of the Water Torture Cell.  Gaughan shipped the Water Torture Cell to Houdini Magic Shops, Inc. in Las Vegas.  The Water Torture Cell was scheduled to be exhibited at the Houdini Museum at The Venetian.  Gaughan sent Radner a bill for the work and Radner paid the full amount due.  Gaughan failed to return the original crate (“Crate”) to Radner and failed to send the unused pieces of the original Water Torture Cell (“Remnants”).

21.             On October 30, 2002, Radner learned that Gaughan had created a replica of the Water Torture Cell (“Replica”).  Upon information and belief, the Replica is a fully functional working replica of the original Water Torture Cell. Upon information and belief, Gaughan showed the Replica and the original Water Torture Cell to other magicians and bragged that they could not tell the difference between the original and the Replica.  Upon information and belief, Gaughan gave Remnants to other magicians.

22.             On November 8, 2002, Radner wrote a letter to Gaughan and objected to Gaughan’s creation of the Replica and his showing it to others.  Radner demanded that Gaughan turn over possession of the Replica and offered to pay Gaughan for his time and labor in creating the Replica.  Gaughan failed to respond to the letter.

23.             On November 29, 2002, Radner sent a letter to Gaughan requesting a reply to his November 8, 2002, letter.  Again, Gaughan failed to respond to the letter.

24.             On February 11, 2003, Radner sent a letter to Gaughn in which Radner requested the return of the Houdini Trapeze Artist and the unused pieces of the Water Torture Cell.  Again, Gaughan failed to respond.

25.             On March 26, 2003, Radner sent a letter to Gaughan indicating that he had not received any response to his request for return of the Houdini Trapeze Artist and requesting that Gaughan allow Munari to inspect the Replica.  Radner made this request so that the existence of the Replica and its similarity to the original Water Torture Cell could be confirmed. Again, Gaughan failed to respond.

26.             Gaughan’s creation of a Replica has diminished the value of the Water Torture Cell. Gaughan’s creation of a Replica has raised questions regarding the authenticity of the Water Torture Cell, specifically, whether the Replica contains any part of the original Water Torture Cell.

COUNT I

(Breach of Contract)

27.             Plaintiff incorporates the allegations set forth in each of the preceding paragraphs as if fully set forth herein.              

28.             Radner and Defendants entered into a mutually beneficial bailment contract by which Defendants agreed to restore the Water Torture Cell and Radner agreed to pay Defendants for restoring the Water Torture Cell.

29.             Defendants materially breached the contract by creating a replica of the Water Torture Cell.

30.             Defendants’ breach of the contract caused Radner to suffer damages in an amount to be determined at trial.

COUNT II

(Breach of Bailment Contract)

 

31.             Plaintiff Radner incorporates the allegations set forth in each of the preceding paragraphs as if fully set forth herein.

32.             Radner created a bailment by delivering the Water Torture Cell to Defendants in trust for a specific purpose, pursuant to an express or implied contract to fulfill that trust.

33.             Defendants breached the bailment contract by exceeding the scope of the bailment.

34.             Defendants’ breach of the bailment contract caused Radner to suffer damages in an amount to be determined at trial.

 

COUNT III

(Fraud)

35.             Plaintiff Radner incorporates the allegations set forth in each of the preceding paragraphs as if fully set forth herein.

36.             Defendants made the material and false representation to Radner that the Defendants were creating a small non-working mock-up of the Water Torture Cell for Defendants’ own use.

37.             Radner relied on Defendants’ representation to Radner’s detriment.

38.             As the direct and proximate result of Defendants’ fraud, Radner suffered damages in an amount to be determined at trial.

 

COUNT IV

(Misappropriation of Trade Secrets)

39.             Plaintiff Radner incorporates the allegations set forth in each of the preceding paragraphs as if fully set forth herein.

40.             The secret to the Water Torture Cell constitutes information that derives independent economic value from not being known or readily ascertainable through proper means by the public or by any other persons who can obtain commercial or economic value from its disclosure or use.

41.             Radner used reasonable efforts to maintain the secret of the Water Torture Cell.

42.             Defendants’ misappropriated Radner’s trade secret by acquisition through improper means, use and/or disclosure.

43.             As the direct and proximate result of Defendants’ misappropriation, Radner has suffered damages in an amount to be determined at trial.

 


COUNT V

(Unjust Enrichment)

 

44.             Plaintiff Radner incorporates the allegations set forth in each of the preceding paragraphs as if fully set forth herein.

45.             Radner conferred a benefit on Defendants.

46.             Defendants retained and appreciated the benefits.

47.             It would be unjust and inequitable to allow the Defendants to accept and retain the benefits with compensating Radner.

48.             Radner is entitled to the value of the benefit conferred on the Defendants.

 

COUNT VI

(Conversion)

49.             Plaintiff Radner incorporates the allegations set forth in each of the preceding paragraphs as if fully set forth herein.

50.             Defendants committed a distinct act of dominion wrongfully exerted over Radner’s personal property.

51.             Defendants’ action was in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights.

52.             As the direct and proximate result of Defendants’ action, Radner suffered damages in an amount to be determined at trial.

 

COUNT VII

(Trespass to Chattel)

 

53.             Plaintiff Radner incorporates the allegations set forth in each of the preceding paragraphs as if fully set forth herein.

54.             Radner has the immediate right to possession of the Houdini Trapeze Artist, Crate, and Remnants.

55.             Gaughan has interfered with Radner’s right to possession of the Houdini Trapeze Artist, Crate and Remnants.

56.             Gaughan’s conversion has proximately caused Radner to suffer damages in an amount to be determined at trial.

 

COUNT VII

(Breach of Contract – Houdini’s Magic Shop, Inc.)

57.             Plaintiff Houdini’s Magic Shop, Inc. incorporates the allegations set forth in each of the preceding paragraphs as if fully set forth herein.

58.       Houdini’s Magic Shop, Inc. was an intended third-party beneficiary of the contract between Radner and Defendants.

59.       Defendants had a promissory intent to benefit Houdini’s Magic Shop, Inc. and others that were to publicly display the Water Torture Cell.

60.       Houdini’s Magic Shop, Inc. reasonably relied on Defendants’ contractual obligation to restore the Water Torture Cell and not create a Replica that would diminish the value of the Water Torture Cell and/or call into question its authenticity.

 

PRAYER FOR RELIEF

 

            Plaintiffs respectfully request that the Court grant the following relief:

A.        Entry of an injunction requiring Defendants to transfer the Replica to Plaintiff Radner or, in the alternative, an order requiring Defendants to destroy the Replica (except for any parts of the original Water Torture Cell) or, in the alternative, and an injunction prohibiting Plaintiff from ever displaying the Replica to anyone;

B.        Entry of an injunction prohibiting Defendants from disclosing the secret to the Water Torture Cell and/or Replica.

C.        An order requiring Defendants to return the Houdini Trapeze Artist, Crate and Remnants to Plaintiff Radner;

D.        An award to the Plaintiffs of all compensatory, consequential, punitive and exemplary damages they have suffered in an amount to be determined at trial; and

 

 

E.         All other relief to which the Plaintiffs are entitled.

EXECUTED this 17th day of July, 2003.

 

 

LEWIS AND ROCA LLP

 

BY: ___________________________

       Michael J. McCue

       Suite 600

       3993 Howard Hughes Parkway

       Las Vegas, Nevada 89109

       Tel:  702.949.8224

       Fax:  702.949.6383

 

 

       Attorneys for Plaintiff

       Sidney Radner