Desiste v. Sobande

1

BRUCE DESISTE, Plaintiff, v. SOLOMON SOBANDE, Defendant.

No. 20 Civ. 6947 (KPF)

United States District Court, S.D. New York

September 28, 2022

OPINION AND ORDER

KATHERINE POLK FAILLA, DISTRICT JUDGE

Plaintiff Bruce Desiste brings this action against Defendant Solomon Sobande for breach of a profit-sharing agreement that Plaintiff claims the parties entered into after he introduced Defendant to two emerging artists: the late rapper Jahseh Dwayne Ricardo Onfroy, known professionally as “XXXTentacion” (“Onfroy”); and Stokely Clevon Goulbourne, known professionally as “Ski Mask the Slump God” (“Goulbourne”). Plaintiff claims that, under the terms of the alleged agreement, Defendant owes Plaintiff 20% of Defendant's earnings from his management of Onfroy and Goulbourne. Defendant denies ever entering into such an agreement with Plaintiff.

Now before the Court is Defendant's motion for summary judgment. For the reasons that follow, the Court finds that there is a genuine dispute of material fact as to whether an enforceable profit-sharing agreement existed between the parties, and thus denies Defendant's motion for summary judgment.

BACKGROUND^[1]

A. Factual Background

The parties' submissions are rife with factual disputes. This section notes the few facts on which the parties agree and specifies where their understandings diverge.

1. The Relationship Between the Parties

Plaintiff is an aspiring rapper and recording artist known professionally as “Kridakal” or “Krida.” (Pl. 56.1 ¶ 1; Def. Counter-56.1 ¶ 69). Defendant is an artist manager and the co-founder and CEO of Sounds Music Group, Inc. (Pl. 56.1 ¶¶ 2, 6). The two men attended the same high school. (Def. Counter-56.1 ¶ 67).

In or around 2015,^[2] Plaintiff began visiting a recording studio that Defendant operated out of his mother's home in Elmont, New York. (Pl. 56.1 ¶¶ 4, 12). On several occasions, Defendant permitted Plaintiff to record his music at the Elmont studio for free. (Id. at ¶¶ 12, 14). Defendant also helped Plaintiff book shows and promote his music by connecting him with agencies and marketing professionals. (Id. at ¶ 16). Plaintiff asked Defendant to manage his music career multiple times, but Defendant declined. (Id. at ¶ 17). The two became friends and communicated often. (Def. Counter-56.1 ¶ 70).

2. Defendant's Management of XXXTentacion and Ski Mask the Slump God

The parties also dispute many of the facts surrounding Defendant's introduction to and eventual management of Onfroy and Goulbourne. They agree on three points: (i) Plaintiff gave Defendant the phone number of Onfroy's friend, Christian Gotay, in or around 2016 (Pl. 56.1 ¶ 27); (ii) Gotay connected Defendant with Onfroy (id. at ¶ 28); and (iii) Defendant signed management agreements with both Onfroy and Goulbourne in early 2017 (id. at ¶¶ 36, 40). They differ as to almost everything else.

The Court begins with Plaintiff's point of view. Plaintiff takes credit for introducing Defendant to Onfroy and Goulbourne. He claims that he recognized the artists' musical potential after meeting them at Gotay's home in Fort Lauderdale, Florida, in 2015. (Pl. 56.1 ¶¶ 73-76). Plaintiff recalls speaking with both Gotay and Defendant on multiple occasions in 2015 and 2016 about the possibility of Defendant managing Onfroy and Goulbourne. (Id. at ¶¶ 80-89). Plaintiff reports that Defendant was unfamiliar with the artists and initially did not like their music (id. at ¶¶ 83-85), but changed his mind after Onfroy began receiving popular attention following his October 2016 arrest (id. at ¶¶ 92-95). At Defendant's insistence, Plaintiff facilitated Defendant's introduction to Onfroy by connecting him with Gotay. (Id. at ¶¶ 95, 98-101). Plaintiff and Gotay then arranged for Defendant to visit Onfroy in a Florida prison on January 28, 2017. (Id. at ¶ 102). Defendant signed a management agreement with Onfroy during that visit. (Id. at ¶ 103).

Plaintiff also purports to have played a key role in introducing Defendant and Goulbourne. Plaintiff avers that in January 2017, Defendant expressed interest in managing Goulbourne (Pl. 56.1 ¶ 105), and texted Plaintiff “get ski mask” and “Let's make Ski Mask a star” (Pl. Decl., Ex. 1).^[3] Plaintiff claims to have facilitated their introduction by calling Defendant on several occasions while with Goulbourne so that the two could chat. (Pl. 56.1 ¶ 108). Defendant began managing Goulbourne in February 2017. (Id. at ¶ 109).

Defendant recalls those events differently. He maintains that he was aware of Onfroy's talent before hearing about him from Plaintiff. (Def. 56.1 ¶ 26). Although Defendant acknowledges that Plaintiff connected him with Gotay, he claims to have developed an independent relationship with Gotay that eventually led Gotay to introduce him to Onfroy. (Id. at ¶¶ 27-28). Defendant says that he invested significant time building relationships with Onfroy and his mother, Cleopatra Bernard, and arranged his own travel to Florida to sign the management agreement with Onfroy. (Id. at ¶¶ 30-36; Def. Counter-56.1 ¶ 102).

Defendant also denies that Plaintiff played a role in facilitating his professional relationship with Goulbourne. (Def. Counter-56.1 ¶ 108). Defendant avers that he introduced himself to Goulbourne by direct messaging him on Instagram. (Id.). In Defendant's view, Goulbourne signed with Defendant because he was aware of Defendant's work with Gotay. (Def. 56.1 ¶¶ 39-40).

3. The Alleged Profit-Sharing Agreement Between Plaintiff and Defendant

The present dispute stems from the breach of an alleged agreement between Plaintiff and Defendant to share the profits of Defendant's work with Gotay and Goulbourne. Here, too, many of the operative facts about that agreement are disputed.

Again, the Court begins with Plaintiff's point of view. According to Plaintiff, he and Defendant discussed entering into an agreement whereby Plaintiff would introduce Defendant to Onfroy and Goulbourne and assist with their representation in exchange for 20% of Defendant's gross commissions from managing the artists. (Pl. 56.1 ¶¶ 96-97). After Plaintiff made the introductions and Defendant signed management agreements with the two artists, Defendant sent Plaintiff a blank W-9 form, which Plaintiff completed and emailed to Defendant on March 5, 2017. (Pl. Decl. ¶¶ 34-36; id., Ex. 2). On March 6, 2017, Defendant provided Plaintiff a printed copy of a draft profit-sharing agreement memorializing the previously agreed-upon terms, and emailed^[4] Plaintiff a copy of the same the next day. (Pl. Decl. ¶¶ 37-38; id., Ex. 3). The parties texted about the draft agreement on March 8, 2017:

[Defendant]: Emailed you profit sharing agreement bring me 2 copies and let's sign.

[Plaintiff]: gotta go over it before I sign bro

[Plaintiff]: But let's do it

[Defendant]: Of course

[Defendant]: I was gonna go over it with you if there was stuff you didn't understand

[Defendant]: But I made sure there was provisions to protect your % no matter what happens to my deal.

[Plaintiff]: Kopy

(Pl. Decl., Ex. 4).

Plaintiff recalls signing the profit-sharing agreement together with Defendant at Defendant's home on March 14, 2017. (Pl. 56.1 ¶ 121). Plaintiff electronically signed the agreement on Defendant's phone using DocuSign. (Id. at ¶ 122).^[5] Defendant did the same immediately afterwards. (Id. at ¶ 124).

Later that evening, Plaintiff received a copy of the executed agreement from Defendant's email address. (Pl. Decl. ¶ 50; id., Ex. 5).

For his part, Defendant is adamant that he never entered into a profit-sharing agreement with Plaintiff. (Def. Reply Decl. ¶ 9 (“[A]t no time did I discuss with Plaintiff any type of commission sharing arrangement[.] When Plaintiff provided me with Gotay's contact information, he did so willingly and without any strings attached.”)). Defendant denies sending Plaintiff a W-9, though he admits to receiving one from Plaintiff through an associate. (Id. at ¶ 17 n.4; Def. Counter-56.1 ¶ 111). He also denies sending Plaintiff the draft agreement, texting Plaintiff about the draft, signing the agreement, or emailing Plaintiff the executed agreement. (Def. Decl. ¶ 44; Def. Reply Decl. ¶ 17). Defendant suggests that any emails from his account were sent by Plaintiff himself, who had access to Defendant's computer and iPhone at the Elmont studio. (Def. Reply Decl. ¶ 17). Plaintiff denies sending any emails to himself from Defendant's account. (Pl. Decl. ¶ 35).

According to Plaintiff, Defendant largely complied with their agreement until May or June 2017. He maintains that Defendant kept him in the loop on Onfroy's and Goulbourne's professional activities. (Pl. 56.1 ¶ 133). In connection with the instant litigation, Plaintiff produced screenshots of text messages in which Defendant alluded to paying Plaintiff a portion of revenues from his representation of the artists (id. at ¶ 139), including an April 21, 2017 text stating, “Getting the money in 72 hours. Giving you 5k.” (Pl. Decl., Ex. 9); an April 25, 2017 text message stating, “Good news. Money came in … Just want you to know that all that money and you still gonna be ugly,” followed by a smiling emoji (id., Ex. 10); a May 8, 2017 text stating, “Working on getting this deposit for camp flognogg. Might have some bread for you today.” (id., Ex. 11); and an undated message stating, “When Ski get paid for his Merch deal you will get $$” (id., Ex. 13). Defendant denies sending these messages. (Def. Reply Decl. ¶ 22).

The parties do agree, however, that Defendant paid Plaintiff during this period. Plaintiff claims that Defendant paid him a total of $40,000 in the first half of 2017, including two $5,000 payments, a $10,000 payment, and a $20,000 payment. (Pl. Decl. ¶¶ 65-67). Plaintiff further asserts that...