Baby-Cakes Studio LLC v. Robinson

BABY-CAKES STUDIO LLC, Plaintiff, v. LINETTA ROBINSON and BRYANT JOHNSON, a/k/a BRYANT LAMONT Defendants.

No. 20-CV-8779 (ALC) (KHP)

United States District Court, S.D. New York

August 12, 2021

OPINION AND ORDER

KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

Plaintiff Baby-Cakes Studio LLC, moves pursuant to Federal Rule of Civil Procedure 41(a)(2) to voluntarily dismiss the above-entitled action without prejudice. Fed.R.Civ.P 41(a)(2). For the reasons set forth below, this action is dismissed without prejudice.

BACKGROUND

Plaintiff is a New York limited liability company, that was formed to hold personal property, and intellectual property rights of artist Nathaniel Mary Quinn (“Artist”), who is the author of the missing pieces of artwork. (FAC ¶ 7.)

The paintings at issue are: (1) Untitled [Five Figures], (2) Untitled [Man with Red Balloon], and (3) LOVE MOTHER JESUS (collectively, “The Works”). The pieces of artwork are approximately eight feet long with a combined value of over $200, 000. (FAC ¶21.)

In 2006, the Artist had a solo exhibit, titled “Couture Hustle, ” at STEELLIFE Gallery in Chicago, Illinois. (FAC ¶ 20.) After the show, the Artist returned to the gallery to bring the artworks back to New York City, but the Artworks were missing and he presumed that they had been thrown out by the building maintenance staff. (Quinn Decl ¶ 11.)

In or about May 2020, the Artist learned about the location of one of his Works after Plaintiff was contacted by a New York auction house seeking more information about the work prior to placing it for sale in a public auction. (FAC ¶¶ 14-15.) This specific work was titled “Untitled [Five Figures].” Plaintiff promptly advised the auction house that the work had been stolen. (FAC ¶ 16.) Following further communications, the auction house disclosed the identity of the consignor of the work: Defendant Linetta Robinson (“Robinson”). (FAC ¶ 17.)

Robinson claimed to have purchased the work from an exhibition at an art gallery in Chicago, Illinois in or around 2006, but did not have any paperwork to document her purchase. (FAC ¶¶ 18-19.) The gallery was owned and operated by Defendant Bryant Johnson (“Johnson”). (FAC ¶ 22.) While the Artist did have an exhibition at the Gallery in 2006, none of the Works were consigned to the Gallery. (FAC ¶¶ 20, 23.)

In or about August 2020, Plaintiff advised Robinson of the earlier theft of the artwork and demanded that Robinson return the artwork to Plaintiff. (FAC ¶ 25.) Robinson refused to return the work to Plaintiff claiming she had good title of the work. (FAC ¶ 26.) Robinson did not disclose at this time that she claimed to own additional artworks by the Artist. (FAC ¶ 27.) Additionally, the New York auction house continues to hold one of the artworks pending resolution of this case. (FAC ¶ 28.)

The artwork that is being held by the auction house has suffered sufficient damage such that the Artist has invoked his rights under 17 U.S.C. § 106A(2) (the “Visual Artists Rights Act” or “VARA”) to prevent any use of his name as the author of any of that artwork due to the distortion, mutilation, and modification to that artwork, as further attribution would be prejudicial to the Artist's honor and/ or reputation. (ECF No. 28-2, ¶ 21.) The Artist would also like to invoke his rights under VARA should the other two missing pieces of artwork appear. (Id.)

Plaintiff filed this instant motion after Defendants represented that the whereabouts of the two other artworks are unknown. Plaintiff filed this motion to dismiss without prejudice to allow the Artist to rebring the case should the two other pieces of artwork reappear.

PROCEDURAL HISTORY

Plaintiff commenced this action on October 21, 2020 (ECF No. 1) and the Defendants filed an answer to the complaint on December 11 2020. (ECF No. 8.) On January 27, 2021, an initial case management conference was held and a scheduling order issued. (ECF No. 11.) Plaintiff then filed an amended complaint (“FAC”) on March 19, 2021. (ECF No. 15) That complaint asserted four claims of relief against Defendants for (1) declaratory judgment; (2) replevin; (3) conversion; and (4) aiding and abetting conversion. (FAC ECF No. 15 at ¶¶ 55-87.) On May 3, 2021, Defendants filed an answer to the FAC. (ECF No. 22.) On June 1, 2021, the undersigned ordered the Defendant to provide responsive documents to Plaintiff's document requests and his initial disclosures or otherwise be sanctioned. (ECF No. 25.) On June 17, 2021, Plaintiff filed the instant motion to dismiss without prejudice (ECF No. 28.) The parties have consented to the undersigned to resolve this motion pursuant to 28 U.S.C. § 636(c). (ECF No. 41.)

LEGAL STANDARD

Federal Rule 41(a)(2) provides that, absent the defendant's consent, an action may be dismissed by the plaintiff “only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2). “The grant or denial of a dismissal on motion under Rule 41(a)(2) is within the sound discretion of the trial court.” Bynum v. Maplebear Inc., 209 F.Supp.3d 528, 535 (E.D.N.Y. 2016) (quotations omitted). Unless the order states otherwise, a dismissal under Rule 41(a)(2) is without prejudice. Id. Voluntary dismissal without prejudice is not a matter of right. However, “the presumption in this circuit is that a court should grant a dismissal pursuant to Rule 41(a)(2) absent a showing that defendants will suffer substantial prejudice as a result.” Parker v. Tougher Industries, Inc., No. 6-CV-400, 2013 WL 316389, at *1 (N.D.N.Y. Jan. 28, 2013) (courts generally “presume that a party's motion to dismiss its own claims without prejudice should be granted”); Banco Cent. De Paraguay v. Paraguay Humanitarian Found., Inc., No. 01 CIV. 9649, 2006 WL 3456521, at *2 (S.D.N.Y. Nov. 30, 2006) (internal quotation marks and citation omitted). The focus of the analysis on a motion for voluntary dismissal is prejudice to the defendant. BD ex rel. Jean Doe v. DeBuono, 193 F.R.D. 117, 123 (S.D.N.Y. 2000).

“[T]wo tests have developed in the Second Circuit for determining whether dismissal without prejudice would be inappropriate[.]” GFE Global Fin. & Engineering Ltd. v. ECI Ltd. (USA), Inc., 291 F.R.D. 31, 36 (E.D.N.Y. 2013); McCombs v. M&T Bank Corp., 335 F.R.D. 41, 44 (W.D.N.Y. 2020). The first test examines whether the defendant would suffer some plain legal prejudice from a dismissal without prejudice, beyond the prospect of a second lawsuit. Camilli v. Grimes, 436 F.3d 120, 123 (2d Cir. 2006) (citing Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217, 67 S.Ct. 752, 91 L.Ed. 849 (1947)). The second “test for dismissal without prejudice involves consideration of various factors, known as the Zagano factors.” Kwan v. Schlein, 634 F.3d 224, 230 (2d Cir. 2011) (quoting Camilli, 436 F.3d at 123)

In Zagano v. Fordham University, the Second Circuit set forth five factors that a court must consider in determining whether a defendant will suffer legal prejudice: “(1) the plaintiff's diligence in bringing the motion; (2) any ‘undue vexatiousness' on plaintiff's part; (3) the extent to which the suit has progressed, including the defendant's efforts and expense in preparation for trial; (4) the duplicative expense of relitigation; and (5) the adequacy of plaintiff's explanation for the need to dismiss.” 900 F.2d 12, 14 (2d Cir. 1990). In the circumstance “where no possibility of relitigation at the instance solely of the plaintiff exists, the Zagano factors have little, if any, relevance.” Camilli v. Grimes, 436 F.3d 120, 123 (2d Cir. 2006). However, the Zagano factors apply where, as here, the moving party is seeking to have the opportunity to renew claims against the non-moving party.

Having considered these factors, I conclude that dismissal without prejudice is appropriate, under either test.

ANALYSIS

Defendants argue that Plaintiff's application is not proper because Plaintiff's allegations are based on “suspicions and extraneous gossip;” the Artist admitted at a deposition that he abandoned the three art pieces three years before Johnson's show at which Defendant Robinson purchased them; and that dismissal under the Visual Artists Rights Act pursuant to 17 U.S.C. § 106A(2) is improper. The Court finds that none of these arguments address why this action should not be dismissed without prejudice. Additionally, the Court finds that the Defendants have not demonstrated legal prejudice sufficient to bar the Plaintiff's motion for a voluntary dismissal of this action under Rule 41(a)(2) and that the Zagano factors weigh in favor of the Plaintiff. See Jaskot v Brown, 167 F.R.D. 372, 374 (S.D.N.Y. 1996) (“[T]he mere fact that the plaintiff may seek to include the allegations contained in this complaint in a subsequent proceeding is not sufficient legal prejudice.”).

With respect to the first Zagano factor, the Plaintiff has acted with diligence given the circumstances of the case. This case has been pending since the initial complaint was filed in October of 2020. See In re Bank of Am. Mortg Servicing S'holder Derivative Litig., No. 11 CIV. 2475, 2012 WL 1506271, at *2 (S.D.N.Y. Apr. 4, 2012). (“When assessing a plaintiff's diligence, courts consider the length of time the action has been pending.”). Importantly, Plaintiff filed two letter motions to compel discovery from the Defendants. But, the Defendant failed to provide any discovery, or provide any information on which discovery could begin in earnest, asserting that the paintings at issue have not been located. (See ECF No. 27, June 4, 2021 Letter from Defendants' counsel to Judge Parker, at 2.) SEC v. One or More Unknown Purchasers of Sec. of Telvent GIT, SA, No. 11 CIV. 3794, 2013 WL 1683665, at *2 (S.D.N.Y. Apr. 17, 2013). Since the Defendant failed to...