KC Royalties Claim Booted From Federal Court

Smith v Casey, No. 1:12-cv-23795 (S.D. Fla. Apr. 25, 2013) [Doc. 84].


The Court declined to exercise supplemental jurisdiction over Plaintiff’s remaining state-law claim for breach of contract relating to royalties, and "declines Plaintiff’s ill-formulated request for declaratory relief."

Plaintiff's copyright claim was previously dismissed, leaving only a state-law breach of contract claim and a request for declaratory relief.  The Court found that because "Plaintiff’s timely claims for breach-of-contract will not become time-barred as a result of this Court’s dismissal without prejudice", it would not exercise supplemental jurisdiction over the state law claim.  Moreover, there was no diversity, and very little discovery had taken place.  The Court also rejected the declaratory judgment claim, stating it was dangerously close to a request for issuance of an advisory opinion.

Mtn. for Judgment and New Trial Denied

Malmsteen v. Berdon LLP, No. 05 Civ. 00958, 1/28/09 N.Y.L.J. Decision of Interest (S.D.N.Y. decided Jan. 20, 2009).

Plaintiff Yngwie Malmsteen ("plaintiff") asserted claims against defendants Berdon, LLP ("Berdon"), Michael Mitnick, James Lewis and James Lewis Entertainment ("JLE") for, inter alia, breach of contract and breach of fiduciary duty. Plaintiff is a professional musician who employed defendant Lewis as his personal manager and defendant Mitnick as his business manager in the 1990s and until early 2000. Plaintiff claimed that Lewis embezzled millions of dollars from him between approximately 1995 and 2000 and that defendants Mitnick and Berdon (collectively, "defendants") enabled Lewis to do so. Plaintiff alleged that defendants acted with fraudulent intent or, alternately, in violation of their contractual and fiduciary duties.

A trial was held in mid-2008. At the close of plaintiff's case, defendants moved for judgment as a matter of law under Rule 50(a) on all of plaintiff's claims. The Court granted the motion with respect to the fraud claim but allowed the breach of contract and breach of fiduciary duty claims to go forward. At the end of the trial, the jury returned a verdict for plaintiff on both of his claims. The special verdict form completed by the jury indicated that plaintiff was entitled to zero dollars on his breach of contract claim, $450,000 in damages on his breach of fiduciary duty claim, and zero dollars in punitive damages on the breach of fiduciary duty claim.

Defendants filed the instant motion seeking (i) judgment as a matter of law pursuant to Rule 50(b) (ii) a new trial pursuant to Rule 59(a), or (iii) denial of the motion for a new trial conditional on plaintiff's acceptance of a remittur on damages.

After outlining the standards for Rules 50 and 59, and remittur, the Court held:

1. A reasonable jury Could Have Concluded That Lewis Embezzled Money From Plaintiff
2. Plaintiff's Breach of Contract Claim is Not Time-Barred
3. A Reasonable Jury Could Have Concluded That Defendants Breached Their Contract With Plaintiff
4. The Jury's Failure to Award Damages for Plaintiff's Breach of Contract Claim Did Not Require Vacatur of the Jury's Finding on Liability
5. A Reasonable Jury Could Have Concluded That Defendants Breached Their Fiduciary Duty to Plaintiff
6. The Jury's Damages Award Was Not Excessive
7. Plaintiff's Summation Did Not Warrant a New Trial

For the foregoing reasons, the Court denied defendant's motions for judgment as a matter of law, for a new trial, and for remittur.

End of RIAA Litigation for Online File-Sharing?

"The recording industry plans to lay down its litigation offensive against music pirates in favor of a more PR-friendly, if not more effective, strategy. Instead of suing thousands of people for stealing tunes via the Internet, it will rely on the cooperation of Internet-service providers"

Article from the Wall Street Journal.

Sanction Motion Argues Blogging is Vexatious Conduct

Ray Beckerman defends alleged file-sharers in cases brought by the RIAA; he also runs the most comprehensive blog about the RIAA's legal campaign against file-sharing.

In UMG Recordings, Inc. et al. v. Lindor, No. 05 CV 1095 (DGT)(RML), (E.D.N.Y. motion dated Sept. 12, 2008), plaintiffs filed a memorandum of law in support of their motion for sanctions and to dismiss without prejudice. Their argument is:

Defendant And Her Counsel Should Be Sanctioned For Providing False And Misleading Information And For Unreasonably And Vexatiously Multiplying And Prolonging This Litigation; Defendant and her counsel should be sanctioned for discovery abuses under Rule 37 and the Court’s inherent authority; Defendant’s counsel should be sanctioned for engaging in vexatious litigation in violation of 28 U.S.C. § 1927 by making false statements, fighting Plaintiffs’ good faith efforts to uncover crucial evidence, and filing frivolous motions, all of which unnecessarily increased the costs of this litigation; Defendant, her counsel, or both should be ordered to pay monetary sanctions to Plaintiffs because their misconduct demeaned the integrity of the judicial process and unnecessarily prolonged and increased the cost of this lawsuit.

At page 19-20 of the brief, plaintiff's argue:

Finally, as this Court is aware, Defendant’s counsel has maintained an anti-recording
industry blog during the course of this case and has consistently posted virtually
every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass Plaintiffs. Such vexatious conduct demeans the integrity of these judicial proceedings and warrants this imposition of sanctions. See Galonsky, 1997 U.S. Dist. LEXIS 19570, at *18-19.

Going Back to Ohio

OTCS was in Cleveland for the weekend and was reminded of one of its most popular blog entries regarding a copyright infringement action filed in the Northern District of Ohio against a winery for failure to obtain ASCAP public performance licenses. Following up on this matter, it appears that not much has occurred since initially filed. However, Judge Catherine O'Malley granted defendant winery an extension until February 27, 2008 to file an answer or other responsive pleading.

Generally Rule 12(a)(1)(a) of the Federal Rules of Civil Procedure ("...defendant shall serve an answer within 20 days after being served with the summons and complaint...").

[Freejunket Music et. al v. Ferrante Wine Farm, Inc; case no. 1:08-cv-00155; order issued Feb. 7, 2008]

Joinder in DOE Suits

A California federal judge rejected joinder of John Does 2-5 in a P2P suit filed by the multiple record labels. See Rules 20 and 21 of the Federal Rules of Civil Procedure. In its order denying plaintiff's motion for reconsideration, the court cited authority for its holding:

...numerous courts have held the opposite: that joinder of defendants who allegedly downloaded music using the same ISP and the same file-sharing program is improper. See, e.g., Interscope Records v. Doe, No. 04-0197 (M.D. Fla. Apr. 1, 2004) (severing defendants who used the same ISP and same file-sharing program); see also BMG Music v. Doe, No. 06-CV-1579 (N.D. Cal. July 31, 2006) (severing defendants who used the same ISP); BMG Music v. Doe, No. 04-650 (E.D.Pa. Mar. 5, 2004) (same); Twentieth Century Fox Film Corp. v. Doe, No. C-04-4862 ("[The allegation that defendants used the same ISP] amounts to no more than a claim that ten unrelated defendants engaged in distinct and unrelated conduct.").

Analysis by Recording Industry v. the People here.

[Sony BMG Music Entertainment v. Does 1-5; No. Cv-07 2434-SJO (C.D.Cal denying plaintiff's motion for reconsideration entered Sep. 4, 2007) (Docket No. 9)]