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Fish v. Boone & Crockett Club

United States District Court, W.D. Wisconsin

April 18, 2017

JAY K. FISH, Plaintiff,
v.
BOONE AND CROCKETT CLUB, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Defendant Boone and Crockett Club has scored, verified, and recorded big game trophies since the 1930s. Plaintiff Jay K. Fish wants Boone and Crockett to recognize a set of antlers from a white-tailed deer known as the King Buck as the “World's Record” for white-tailed deer. Fish sent Boone and Crockett the fee and entry materials it requires to measure, score, and rank the antlers for possible inclusion in its awards programs and Records of North American Big Game book. But Boone and Crockett found that the King Buck antlers did not score as high as Fish thought, and so it did not include the King Buck antlers in its book or identify them as the “World's Record.” Displeased with this result, Fish has filed suit against Boone and Crockett, asserting state-law claims of breach of contract and strict responsibility misrepresentation. Dkt. 16.

         Now Boone and Crockett moves to dismiss Fish's second amended complaint under Federal Rule of Civil Procedure 12(b)(6), contending that Fish fails to state a claim upon which relief can be granted. Dkt. 19. Because each of Boone and Crockett's challenges to Fish's claims fails, the court will deny its motion.

         ALLEGATIONS OF FACT

         The court draws the following facts from Fish's second amended complaint, Dkt. 16, and documents referred to in it, and accepts them as true for the purpose of deciding Boone and Crockett's motion. Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1, 746 (7th Cir. 2012).

         Since the 1930s, Boone and Crockett, a non-profit corporation, has recorded and documented big game trophies-that is, the skulls, antlers, horns, and tusks of animals that have been killed by hunters. Boone and Crockett uses its own measuring and scoring system to rank trophies and determine which trophies may be included in new editions of its book, Records of North American Big Game, and recognized at its awards programs. This scoring system is described in another Boone and Crockett book, Measuring and Scoring North American Big Game Trophies.[1] Boone and Crockett's volunteer force of official measurers are trained to follow the scoring system described in Measuring and Scoring.

         On November 18, 2006, Johnny King shot and killed a male white-tailed deer in Grant County, Wisconsin. The deer became known as the King Buck. Boone and Crockett official measurer John Ramsey measured the King Buck antlers in early 2007 and scored them as a 218-4/8 typical 6x6 rack. This score would rank the King Buck as the highest-scoring typical white-tailed deer ever recorded, outscoring the previous “World's Record, ” a 213-5/8 typical 6x6 rack known as the Hanson Buck antlers. King submitted Ramsey's score sheet for consideration for inclusion in Records of North American Big Game and Boone and Crockett's awards program.

         But shortly after Ramsey assigned the score, Boone and Crockett asked Jack Reneau to examine the King Buck antlers, and he scored them as a 180-0/8 typical 5x5 rank with two abnormal points-a score well below the World's Record. (The disparity results from a disagreement about whether certain points on the antlers are “abnormal.”) King, believing Reneau was incorrect, withdrew his entry from Boone and Crockett.

         In December 2009, Fish bought the King Buck antlers from King. Another Boone and Crockett official measurer, Ron Boucher, remeasured the antlers in October 2010 and scored them as a 218-6/8 typical 6x6 rack. In November 2010, Fish submitted Boucher's score sheet for consideration for inclusion in Records of North American Big Game and Boone and Crockett's awards program. His submission included the specified fee and entry materials listed in Measuring and Scoring. Boone and Crockett refused to accept Fish's entry.

         In September 2012, despite its earlier refusal to accept Fish's entry, Boone and Crockett convened a “judges panel” to measure and score the King Buck antlers. The panel scored the antlers as a 180-0/8 typical 5x5 rack with two abnormal points. The panel deviated from the “Special Judges Panel” process described in Measuring and Scoring and used a version of the scoring system that post-dated Fish's November 2010 submission of the King Buck antlers. According to the newest edition of Records of North American Big Game, the Hanson Buck is still the World's Record for typical white-tailed deer.

         The court has subject matter jurisdiction over Fish's claims pursuant to 28 U.S.C. § 1332 because the parties are completely diverse and the amount in controversy exceeds $75, 000.

         ANALYSIS

         A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint; it is not an opportunity to undertake fact-finding or weigh evidence. In considering such a motion, the court will “accept all well-pleaded facts in the complaint as true and then ask whether those facts state a plausible claim for relief.” Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015). The court is not bound to accept alleged legal conclusions or threadbare allegations that merely recite the elements of a claim. Id. at 826-27.

         Fish's claim for breach of contract provides the foundation for his theory of the case and for his strict responsibility misrepresentation claim. He alleges that Boone and Crockett “advertised and marketed to the public a service and process whereby” the owner of a big game trophy hunted and killed under defined conditions may have an official measurer score the trophy using Boone and Crockett's measuring and scoring system and may then submit the score, along with a specified fee and entry materials, to Boone and Crockett for ranking and possible inclusion in Records of North American Big Game and Boone and Crockett's awards program. Dkt. 16, ¶ 10. He alleges that he accepted Boone and Crockett's “offer” when he submitted Boucher's score sheet for the King Buck antlers and other required entry materials in November 2010, forming a contract. He alleges that Boone and Crockett breached that contract by failing to fulfill its advertised terms and conditions, “including its obligation to measure and score the King Buck in accordance with Boone & Crockett's measuring and scoring system, to rank and record the King Buck as the new Boone & Crockett ‘World's Record' for ...


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