Elliott v. Cartagena

578 F.Supp.3d 421

Eric A. ELLIOTT (p/k/a Fly Havana), Plaintiff,

v.Joseph Anthony CARTAGENA (p/k/a Fat Joe), et al., Defendants.

19 Civ. 1998 (NRB)

United States District Court, S.D. New York.

Signed January 5, 2022

Francis Malofiy, Alfred Joseph Fluehr, Francis Alexander, LLC, Media, PA, for Plaintiff.

Eleanor Martine Lackman, Elaine Nguyen, Mitchell Silberberg & Knupp LLP, New York, NY, for Defendants Joseph Anthony Cartagena, Joey and Ryan Music, Warner-Tamerlane Publishing Corp., Warner/Chappell Music, Inc., Sneaker Addict Touring LLC, Terror Squad Productions, Inc., Terror Squad Entertainment, RNG (Rap's New Generation).

Dariush Ghaffar Adli, Adli Law Group PC, Los Angeles, CA, for Defendants Karim Kharbouch, Excuse My French Music, Excuse My French Music, II.

Eleanor Martine Lackman, Mitchell Silberberg & Knupp LLP, Efrat Cohen, Reed Smith LLP, New York, NY, for Defendant Reminisce Smith Mackie.

Hillel Ira Parness, Parness Law Firm, PLLC, New York, NY, for Defendant Edward F. Davadi, Jr.

Eleanor Martine Lackman, Mitchell Silberberg & Knupp LLP, New York, NY, for Defendant Remynisce Music.

Ilene Susan Farkas, Pryor Cashman LLP, New York, NY, for Defendants Universal Music-Z Tunes LLC, Songs of Universal Inc., Roc Nation LLC, Roc Nation Management LLC.

Eleanor Martine Lackman, Mitchell Silberberg & Knupp LLP, Kerry Anne O'Neill, Tamar Y. Duvdevani, DLA Piper US LLP, New York, NY, for Defendant Empire Distribution, Inc.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE

Plaintiff Eric A. Elliott ("Elliott") has brought this action alleging copyright infringement based on claims that he is the co-author and co-owner of the song "All The Way Up." Before the Court is defendants'¹ renewed motion for summary judgment. Central to this motion is the admissibility under Rules 1003 and 1004 of the Federal Rules of Evidence of a draft of a contract that defendants maintain establishes that Elliott contractually assigned away all of his rights in the song. For the following reasons, defendants' motion is granted in its entirety.

BACKGROUND

Although the Court has previously set out many of the facts in this case in our July 31, 2020 Order, see Elliott v. Cartagena, No. 19 Civ. 1998, 2020 WL 4432450 (S.D.N.Y. 2020), we summarize the relevant facts necessary to resolve this motion, drawn from the complaint filed on March 6, 2019 ("Complaint"), ECF No. 6, and the materials submitted by the parties in connection with this motion and the prior motion for summary judgment.²

I. Meetings Regarding Elliott's Rights to The Song "All The Way Up"

The underlying facts are largely undisputed. Central to the narrative is a meeting between Fat Joe and Elliott in March 2016 at which Elliott signed a "piece of paper" and received a $5,000 check. See Compl. at ¶¶ 50-56. This meeting was preceded by a call between Fat Joe and Elliott in early March 2016, in which Elliott requested payment "up-front or publishing going forward" as a means of credit or compensation for his contribution to "All The Way Up." Parties' Original Rule 56.1 Stmts. ¶ 2³ ; Compl. at 41.

Following the conversation, Elliott and Fat Joe met at an IHOP in mid-March 2016. See Parties' Rule 56.1 Stmts. ¶ 5. At this meeting, Fat Joe presented Elliott with a "piece of paper" and a $5,000 check, which had a memo line that read "write." Id. at ¶¶ 8-9; Compl. ¶ 50. Following a short discussion, Elliott signed the "piece of paper," which he left with Fat Joe, and took the check, which he later deposited. Id. at ¶¶ 10-12.

II. Original Summary Judgment

Five months after this action was commenced, a subgroup of defendants requested leave to file a motion to dismiss the Complaint in its entirety, asserting that the "piece of paper" signed at the IHOP meeting released all copyright claims and would dispose of the case. See ECF No. 112. The Court responded by directing the parties to file any existing copies of the "piece of paper" and declarations explaining any lack of possession. See ECF No. 125. Elliott, Fat Joe, and Erica Moreira, Fat Joe's transactional counsel at the relevant time, all submitted declarations stating that they were not in possession of the "piece of paper" signed at the IHOP meeting. See ECF Nos. 131-1, 131-2, 132-1. Moreira stated that she had prepared a draft (the "Draft Agreement") at Fat Joe's request, incorporating information from Elliott's driver's license, see Moreira Sept. 18, 2019 Decl. at ¶¶ 5-8(ECF No. 131-2), and Fat Joe attested that he printed this version of the document without changes and brought it to the meeting with Elliott. See Cartagena Decl. (ECF No. 131-1). Fat Joe further affirmed that he was unable to locate the signed version of the "piece of paper" after searching his home, personal belongings, and asking people "in [his] circle at the time." Id. at ¶ 9. According to both Fat Joe and Moreira, Fat Joe "may have provided the document to [his] then-manager, Mr. Elis Pacheco," although Fat Joe also noted that "[he] under[stood] that [Pacheco] indicated he was unable to locate a signed copy of the Agreement." Id.; see also Moreira Sept. 18, 2019 Decl. at ¶ 8-9 (ECF No. 131-2).

On October 17, 2019, the Court held a pre-motion conference and granted defendants leave to file a pre-discovery motion for summary judgment limited to the issue of establishing the contents of the agreement signed at the IHOP meeting despite the absence of the signed version of the "piece of paper." See ECF Nos. 135, 141. Following briefing by the parties, see ECF Nos. 143-163, in which defendants relied on the best evidence rule to establish the contents of the agreement based on the Draft Agreement, the Court issued an order on July 31, 2020 denying defendants' motion without prejudice based on defendants' failure to exhaust all efforts to obtain sworn testimony from Pacheco regarding the location of the signed version of the agreement. See ECF No. 166. The Court granted defendants leave to renew the motion for summary judgment after securing non-hearsay evidence sufficient to meet the requirements of Fed. R. Evid. 1004. Id.

III. Defendants' Efforts to Contact Pacheco

Pursuant to the Court's Order, defendants retained a process server and sought to serve Pacheco, who no longer worked with Fat Joe, with a deposition subpoena. See Defs. Rule 56.1 Stmt. ¶ 36; Nguyen Decl. at ¶¶ 4-5 (ECF No. 184-1). Defendants issued four subpoenas, dated August 24, 2020, September 1, 2020, September 14, 2020, and December 16, 2020, and made eleven unsuccessful attempts at service.

Nguyen Decl. at ¶¶ 5-13. On January 15, 2021, defendants requested leave to file a motion for alternative service via certified mail, email, and Facebook, which the Court granted. See Parties' Rule 56.1 Stmts. ¶ 37. As with the earlier attempts at service, defendants' alternative service efforts did not result in a response from Pacheco or his appearance at a noticed deposition. Id. at ¶ 38. Recognizing that defendants had exhausted all efforts to contact Pacheco, the Court granted defendants leave to renew their motion for summary judgment. See ECF No. 183.

STANDARD OF REVIEW

Summary judgment is properly granted where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. A fact is considered to be material "when it might affect the outcome of the suit under governing law," and "[a]n issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks and citations omitted). The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion," as well as the basis for the absence of genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[T]he party opposing summary judgment may not merely rest on the allegations or denials of his pleading; rather his response, by affidavits or otherwise as provided in the Rule, must set forth specific facts demonstrating that there is a genuine issue for trial." Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "[C]onclusory statements, conjecture, and inadmissible evidence are insufficient to defeat summary judgment." Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317 (2d Cir. 2011) (internal quotation marks and citation omitted).

"Only in the rarest of cases may summary judgment be granted against a party who has not been afforded the opportunity to conduct discovery," because "[t]he nonmoving party must have had the opportunity to discover information that is essential to his opposition to the motion for summary judgment." Christie's Inc. v. Davis, 247 F. Supp. 2d 414, 418-19 (S.D.N.Y. 2002) (internal quotation marks and citation omitted).

DISCUSSION

I. Elliott Assigned His Rights By Signing The Agreement

A. The Draft Agreement is Admissible under Fed. R. Evid. 1003 and 1004.

The threshold issue in this case is the admissibility of the draft of the agreement signed by Elliott at the March 2016 meeting. As discussed above, the Court directed an extensive effort to locate a signed copy of the "piece of paper," which Elliott had signed at the IHOP meeting with Fat Joe. Based upon those exhaustive efforts, it is clear that a signed copy cannot be located. Plaintiff does not suggest otherwise. Thus, this is one of the "rarest of cases" in which summary judgment is appropriate despite the lack of formal discovery. Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000).

We start by examining whether defendants have established that the Draft Agreement is admissible to prove the contents of the agreement signed by Elliott. According to the best evidence rule, "[a]n original writing ... is required in order to prove its content unless these rules or a federal statute provides otherwise."

Fed....