Elliott v. Cartagena

84 F.4th 481

Eric A. ELLIOTT, aka Fly Havana, Plaintiff-Appellant, v. Joseph Anthony CARTAGENA, aka Fat Joe, Karim Kharbouch,aka French Montana, Shandel Green, aka Infared,Reminisce Smith Mackie, aka Remy Ma, Edward F. Davadi, Jr.,aka Edsclusive, Joey and Ryan Music, Excuse My French Music,Excuse My French Music II, Mr. Green Music, Remynisce Music,Universal Music-Z Tunes LLC, dba Universal Music Z Songs,Warner-Tamerlane Publishing Corp., Warner/Chappell Music, Inc.,Songs of Universal Inc., Roc Nation LLC,Roc Nation Management LLC, Sneaker Addict Touring LLC,Terror Squad Productions, Inc., Terror Squad Entertainment, RNG(Rap's New Generation), Empire Distribution, Inc.,BMG Rights Management (US) LLC,dba BMG Platinum Songs US, Defendants-Appellees,Kobalt Songs Music Publishing, Kobalt Music Publishing America, Inc.,Reach Global Inc., Sony/ATV Allegro, First N Platinum Publishing,Sony/ATV Tunes LLC, Cuts of Reach Music, Songs of Reach Global,First N Gold Publishing, Inc., Reach Music Publishing Inc.,Sony/ATV Music Publishing, Inc., Marcello Valenzano,aka Cool, Andre Lyon, aka Dre,Dade Co. Project Music, Inc., Po Folks Music, Defendants.

No. 22-255

August Term 2022

United States Court of Appeals, Second Circuit

Argued: March 31, 2023

Decided: October 17, 2023

Appeal from the United States District Court for the Southern District of New York, No. 1:19CV01998, Naomi Reice Buchwald, Judge.

Alfred J. (AJ) Fluehr, Francis Alexander, LLC, Media, PA, for Plaintiff-Appellant.

Eleanor M. Lackman, Mitchell Silberberg & Knupp LLP, New York, NY, for Defendants-Appellees.

Before: Nardini and Merriam, Circuit Judges.^*

Sarah A. L. Merriam, Circuit Judge:

Plaintiff-appellant Eric A. Elliott alleges that he co-created the song "All the Way Up" (the "Song") with defendant-appellee Shandel Green, but that he has not been properly credited or compensated for his contribution. He filed this action in the United States District Court for the Southern District of New York (Buchwald, J.), asserting claims under the Copyright Act, 17 U.S.C. § 101, et seq., as well as various tort claims. Defendants-appellees maintain that Elliott signed an agreement assigning away any rights he may have had in the Song. Elliott agrees that he signed a document, but the signed agreement has never been produced, and the parties disagree about its content and effect. The District Court accepted defendants' contention that the signed agreement was identical to a draft version (the "Draft") produced by defendants and found the Draft admissible as a duplicate. It then granted defendants' motion for summary judgment without allowing Elliott to conduct discovery, holding that this was among the "rarest of cases" in which summary judgment before discovery was appropriate. Hellstrom v. U.S. Dep't of Veterans Affs., 201 F.3d 94, 97 (2d Cir. 2000). We disagree. We hold that the District Court abused its discretion in finding the Draft admissible as a duplicate original under Federal Rule of Evidence 1003, but properly admitted the Draft as "other evidence of the content" of the original under Rule 1004. We further hold that the District Court abused its discretion in denying Elliott's request to conduct discovery prior to the entry of summary judgment and erred in concluding that no genuine dispute of material fact existed based on the current record. We therefore VACATE the judgment and REMAND for further proceedings.

I. BACKGROUND

The parties agree on certain facts, but many are disputed. The background discussed below is based on the parties' submissions at summary judgment, as well as on the verified complaint. See Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) ("A verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issues of fact exist, provided that it meets the other requirements for an affidavit" described in Rule 56(c)(4). (citation and quotation marks omitted)).

Elliott alleges that he "co-created the song" that became "the hit single 'All the Way Up' " with defendant-appellee Shandel Green in 2015. App'x at 167. Green then collaborated with others, including defendant-appellee Joseph Cartagena,¹ to prepare the final version of the Song that was released on March 2, 2016, as performed principally by Cartagena.² Id.

Elliott asserts, and Cartagena does not deny, that he and Cartagena "spoke several times between March 4, 2016, and March 6, 2016," about the Song. Id. at 540.³ Elliott alleges that, during these telephonic discussions, Cartagena acknowledged that "Elliott was a co-author of 'All the Way Up' and should get credit." Id. at 173. According to Elliott, Cartagena

told Elliott that (1) he would get him "some bread" up front (which Plaintiff understood to be a significant sum [of money] for a song that was becoming a hit single) for his contributions to the song[,] (2) more bread later as the song produced income, (3) that they would begin working together because Mr. Elliot was hot and "in the zone," and (4) that Elliot needed to realize that he would have an 'incredible relationship' with Fat Joe going forward if he respected Fat Joe.

Id. Elliott alleges that on March 14, 2016, Cartagena "called [him] and told him to come to an address, but did not say why. Mr. Elliott had assumed it was an office for an attorney, and only when [he] was almost there did he realize that Fat Joe had actually picked an IHOP in Miami Beach" as a meeting place. Id. at 174.

The parties agree that at the IHOP meeting Cartagena gave Elliott a $5,000 check and "put a piece of paper in front of" Elliott for Elliott to sign, which he did. Id. at 541. Elliott maintains that the piece of paper "seemed to state that [he] was going to be compensated and credited as a writer" and that Cartagena told him that the document "essentially memorialized [Cartagena's] representations about getting 'some bread' up front, more later, and working together." Id. at 328-29, 176. Elliott further maintains that Cartagena also reiterated his earlier promises, specifically that Elliott "was going to get some money then, more later, that [they] were going to be working together in the studio, and that [Cartagena] was going to promote [Elliott] as an artist and also [Elliott's] songs." Id. at 484-85. Elliott asserts that Cartagena told him that the "piece of paper" that Elliott signed at the meeting was "supposed to protect Elliott's rights and secure Fat Joe and [Elliott's] future relationship." Id. at 176. Elliott contends that Cartagena left the meeting with the signed document and did not provide Elliott with a copy.

Defendants⁴ produced a draft version of the "piece of paper," claiming it is identical in substance to the version that Elliott signed. The Draft, which is riddled with errors, purports to assign all of Elliott's rights in the Song to an entity called R4 So Valid, LLC.⁵

The Draft states that Elliott⁶ "irrevocably grants to R4 So Valid, LLC . . . any and all rights of ownership or any other rights in and to" the Song in exchange "[f]or good and valuable consideration, the receipt and sufficiency of which Elliot hereby acknowledges." Id. at 323. The Draft states that the consideration as "set forth above" is the "full and complete consideration for all of Elliot's services" and that "no additional compensation (including mechanical royalty or any other payments) will be due to Elliot." Id. The Draft does not describe what the purported consideration was.

The Draft also contains a merger clause: "This Agreement contains the entire understanding of the parties hereto relating to the subject matter hereof and cannot be changed or terminated except by an instrument signed by the parties hereto." Id.

Cartagena's former attorney, Erica Moreira, submitted a declaration saying that she prepared the Draft for Cartagena to present to Elliott. Cartagena submitted a declaration stating: "I did not modify the Agreement that Ms. Moreira prepared, and Mr. Elliot did not make any changes to the Agreement. I presented the Agreement in the form received from Ms. Moreira and Mr. Elliott signed it in the form in which it was presented." Id. at 314. Defendants admit, however, that the Draft is "not a copy of the executed Agreement." Id. at 545.

Elliott maintains that the Draft "does not comport with [his] recollection of the document [he] signed" and that the paper he signed "seemed to state that [he] was going to be compensated and credited as a writer." Id. at 485.

Elliott brought claims pursuant to the Copyright Act as well as various tort claims, seeking damages and credit as an author of the Song. Defendants sought leave to file a motion to dismiss, arguing that Elliott had assigned away any rights he had in the Song. In advance of a pre-motion conference, the District Court ordered the parties to file any versions of the agreement in their possession. In response, defendants submitted the declarations of Cartagena and Moreira, the latter of which attached the Draft. At the pre-motion conference, the District Court expressed its view that if the Draft represented an enforceable contract, that would dispose of the case. The District Court viewed the validity of any assignment of rights as a threshold issue, indicating that it could be addressed without discovery. Because the parties sought to rely on affidavits, the District Court suggested that a dispositive motion directed to the effect of the alleged agreement "maybe should be styled summary judgment." Spec. App'x. at 59. Elliott's counsel objected to this approach, arguing that summary judgment before Elliott was permitted to conduct discovery would be prejudicial. In particular, Elliott's counsel argued that at least limited discovery of the issues surrounding the alleged agreement, including depositions of people such as Moreira, was necessary. The District Court observed that discovery is not required before summary judgment in every case, and indicated...