Case 1:14-cv-02073-APM Document 28 Filed 09/17/15 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`_________________________________________
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`Robert R. Prunty,
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`Plaintiff,
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`v.
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`Vivendi, et al.,
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`Defendants.
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`_________________________________________ )
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`Civil No. 1:14-cv-02073(APM)
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`MEMORANDUM OPINION
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`Pro se Plaintiff Robert Prunty brought this action against Defendants Vivendi SA;
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`UMG Recordings, Inc.; Atlantic Recording Corp.; The Island Def Jam Music Group; Warner
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`Music Group Corp.; and the law firm of Jenner & Block, LLP.1 Am. Compl., ECF No. 6.
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`Plaintiff’s Complaint raises two sets of claims, which are the subject of Defendants’ Motions to
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`Dismiss.2 ECF Nos. 10, 19.
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`Plaintiff’s first set of claims arise from an adverse judgment entered against him in Prunté
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`v. Universal Music Grp., 699 F. Supp. 2d 15 (D.D.C. 2010), aff’d, 425 Fed. App. 1 (D.C. Cir.
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`2011). Prunté was a copyright infringement action before United States District Court Judge Paul
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`Friedman, in which Plaintiff claimed that Universal Music Group, Inc., and a host of others
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`1 It is not clear whether Plaintiff is actually asserting claims against Jenner & Block, LLP, lawyer, Michael DeSanctis.
`Plaintiff’s Amended Complaint lists DeSanctis as a “party,” but states that DeSanctis “is not being sued in any capacity
`except a vicarious one.” Am. Compl., ECF No. 6, at ¶ 9. The court reads that allegation to mean that Plaintiff seeks
`to hold Jenner & Block, LLP, vicariously liable for DeSanctis’ alleged acts. Furthermore, Plaintiff’s Amended
`Complaint also names as a “party” United States District Court Judge Paul Friedman, but states that he “is not being
`sued in any capacity.” Id. ¶ 10. The court therefore does not consider Judge Friedman a named defendant in this
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`2 Defendants Jenner & Block, LLP, Warner Music Group Corp., and Atlantic Recording Corp., jointly filed their
`Motion to Dismiss, ECF No. 10, as did Defendants Vivendi SA, UMG Recordings, Inc., and The Island Def Jam
`Music Group, Mot. to Dismiss, ECF No. 19.
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`Case 1:14-cv-02073-APM Document 28 Filed 09/17/15 Page 2 of 7
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`infringed upon his copyrights in various songs he wrote and produced. Judge Friedman concluded
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`that Plaintiff had failed to establish copyright infringement as to any of his songs. Id. at 25-30.
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`In this case, Plaintiff brings four claims based on alleged acts that occurred in Prunté. In
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`Counts Four and Five, he alleges that Judge Friedman’s decision was the product of racial animus
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`and thus deprived him of property and equal protection of the law in violation of 42 U.S.C. §§
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`1982 (Count Four) and 1985 (Count Five).3 Additionally, in Counts Three and Six, he contends
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`that Judge Friedman and Defendants in this case conspired to hide from him Judge Friedman’s
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`alleged financial interest in Defendants Vivendi SA and UMG Recordings, Inc. As to those
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`allegations, Plaintiff advances common law “claims” of “Intentional Fraud Upon the Court”
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`(Count Three) and “Fraudulent Concealment and Omissions” (Count Six).
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`Distinct from the claims arising from Prunté, Plaintiff asserts a claim under the
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`Copyright Act, 17 U.S.C. §§ 101 et seq. (Count Two), alleging that Defendants (other than Jenner
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`& Block) infringed his copyright in the song “Keys to the Kingdom,” for which he is the “original
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`creator and performer.” Plaintiff avers that Defendants, without authorization, reproduced
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`“Keys to the Kingdom” as the song “Kingdom,” performed by the hip-hop artist Common.
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`The court grants Defendants’ Motions to Dismiss.
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`Section 1982 and 1985 claims. Plaintiff’s Section 1982 and 1985 claims are premised on
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`the allegation that Judge Friedman called a “bogus ‘status conference’” to determine Plaintiff’s
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`race, and thereafter, denied Plaintiff’s copyright claims because of his race. Am. Compl. ¶ 16.
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`Jenner & Block lawyer, Michael DeSanctis, who represented the defendants in Prunté, allegedly
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`“pretended to be a legal combatant” for that hearing. Id.
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`3 Plaintiff concedes that his Count One—“13th Amendment Violations”—is not a free-standing claim. See Pl.’s
`Opp’n, ECF No. 22, at 11 (stating that “every law school child knows that” there is no private right of action under
`the Thirteenth Amendment).
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`Case 1:14-cv-02073-APM Document 28 Filed 09/17/15 Page 3 of 7
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`As a threshold matter, the court finds that the allegations underlying Plaintiff’s Section
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`1982 and 1985 claims are not merely “unlikely,” but are so “fanciful” and “fantastic” as to warrant
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`dismissal. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal quotation marks omitted).
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`A court may dismiss a claim as “factually frivolous” when “the facts alleged rise to the level of
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`the irrational or the wholly incredible, whether or not there are judicially noticeable facts available
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`to contradict them.” Id. at 33. Plaintiff’s naked assertions of racially motivated judicial decision-
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`making qualify as factually frivolous.
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`Even if the court were to credit Plaintiff’s allegations, he has failed to allege that
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`Defendants deprived him of property or equal protection under the law based on his race. Instead,
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`the sole alleged factual predicate for those claims is that Defendants—really, only Jenner &
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`Block—are alleged to have “acquiesce[ed]” in the court’s alleged violations. Am. Compl. ¶ 44.
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`That is not enough to allege a deprivation of civil rights under Sections 1982 or 1985.
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`Further, Plaintiff’s Section 1982 and 1985 claims are barred by the statute of limitations.
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`The District of Columbia’s catch-all three-year limitations period applies to these claims. See Hall
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`v. Clinton, 285 F.3d 74, 82 (D.C. Cir. 2002) (applying three-year period to Section 1985 claim);
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`Hargraves v. Capital City Mortg. Corp., 140 F. Supp. 2d 7, 17 (D.D.C. 2000) (applying three-year
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`period to Section 1982 claim). At the latest, Plaintiff’s claims began to accrue when Judge
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`Friedman entered judgment against him. See Wallace v. Kato, 549 U.S. 384, 388 (2007) (stating
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`that the accrual date of a Section 1983 claim is a matter of federal law; under federal law, a claim
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`begins to accrue when “the plaintiff has a complete and present cause of action”) (citation omitted)
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`(internal quotation marks omitted). Plaintiff contends that the limitations period was equitably
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`tolled because of “Extrinsic Fraud [that] occurred in or about October of 2014”—the date on which
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`he learned about Judge Friedman’s alleged financial interests in Defendants Vivendi SA and UMG
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`3
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`Case 1:14-cv-02073-APM Document 28 Filed 09/17/15 Page 4 of 7
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`Recordings, Inc. Pl.’s Opp’n, ECF No. 22, at 12. But the supposedly “extrinsic fraud” relates to
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`Judge Friedman’s alleged undisclosed financial interests, which has nothing to do with Plaintiff’s
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`civil rights claims and thus could not toll the limitations period on those claims. Am. Compl. ¶
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`16. Accordingly, the court dismisses Plaintiff’s Section 1982 and 1985 claims.
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`Intentional Fraud upon the Court and Fraudulent Concealment. As discussed, the basis
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`for Plaintiff’s “Intentional Fraud upon the Court” and “Fraudulent Concealment” claims is an
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`alleged conspiracy between Judge Friedman and Defendants to keep hidden from Plaintiff the
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`Judge’s purported financial interest in Defendants Vivendi SA and UMG Recordings, Inc.
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`Specifically, Plaintiff contends that Judge Friedman was a “high-powered . . . business partner”
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`and “deeply entrenched partner” of those companies. Id. at ¶¶ 52-53. The court finds these
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`allegations—particularly the allegation that Judge Friedman and Defendants conspired to disguise
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`his alleged financial interests—“fanciful” and “fantastic,” thus warranting dismissal of Counts
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`Three and Six. See Denton, 504 U.S. at 32-33.
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`But even if the court were to give credence to Plaintiff’s allegations, dismissal would be
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`proper because there is no cause of action for “fraud on the court.” See Interstate Fire & Cas. Co.,
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`Inc. v. 1218 Wisconsin, Inc., 136 F.3d 830, 836 (D.C. Cir. 1998) (rejecting tort claim for “fraud on
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`the court” because “[a]though the act complained of is styled a ‘fraud,’ the remedy lies within the
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`court’s equitable discretion”) (citation omitted). Nor is there a cause of action for “fraudulent
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`concealment.” See Cannon v. Wells Fargo Bank, N.A., 988 F. Supp. 2d 29, 31 (D.D.C. 2013)
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`(striking claims in complaint “because they set forth independent causes of action for fraudulent
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`concealment that are not cognizable at law”).
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`And, even if the court were to read Plaintiff’s Complaint to allege common law fraud, his
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`allegations would fail to satisfy Federal Rule of Civil Procedure 9(b)’s requirement that “a party
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`Case 1:14-cv-02073-APM Document 28 Filed 09/17/15 Page 5 of 7
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`must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ P. 9(b).
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`Here, the crux of Plaintiff’s claim is that Judge Friedman conspired with Defendants to conceal
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`his financial interests from Plaintiff. But Plaintiff fails to make any plausible assertion that Judge
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`Friedman had any financial interests in the Defendant companies. Plaintiff lists what appear to be
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`11 mutual funds in which Judge Friedman allegedly had an interest, as of October 2014.
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`Am. Compl. ¶¶ 10, 37, 56. However, nowhere does Plaintiff aver that any of these funds held
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`individual stock of Defendants Vivendi SA, UMG Recordings, Inc., or any other of the defendant
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`companies. Even if the funds held such equities, Plaintiff does not allege that Judge Friedman
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`held them at the time that Prunté was being litigated.4 And, most importantly, Plaintiff does not
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`allege facts from which this court might infer that Defendants knew of Judge Friedman’s supposed
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`financial interests or that Defendants conspired to conceal those interests. Plaintiff’s allegations
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`are entirely conclusory. His fraud claims therefore must be dismissed.
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`Copyright Infringement. Plaintiff’s copyright infringement claim must also be dismissed
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`as it fails to state a cognizable claim. Plaintiff has attached to his Amended Complaint the lyrics
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`of both the alleged infringed song, “The Keys to the Kingdom,” and the alleged infringing song,
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`“Kingdom.” Compl., ECF No. 1, Exs. A and B; see also Busby v. Capital One, N.A., 932 F. Supp.
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`2d 114, 133-34 (D.D.C. 2013) (stating that the court may consider exhibits attached to the
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`complaint in evaluating a Rule 12(b)(6) motion). The court has reviewed the lyrics of both songs
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`and concludes that, other than the word “Kingdom” appearing in both songs’ titles and the phrase
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`“keys to the kingdom” appearing in both songs’ lyrics, they bear little resemblance to one another
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`4 Plaintiff also ignores the Code of Conduct for United States Judges, which provides that a federal judge’s ownership
`of a mutual fund that happens to own stock in a party appearing before the court does not constitute a “financial
`interest” in a party that otherwise would require the court’s disqualification. See Code of Conduct for United States
`Judges, Canon 3(C)(1)(c) (requiring disqualification if the court has a “financial interest in the subject matter in
`controversy or in a party to the proceeding”); Canon 3(C)(3)(c)(i) (defining “financial interest” to exclude “ownership
`in a mutual or common investment fund . . . unless the judge participates in the management of the fund”).
`5
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`Case 1:14-cv-02073-APM Document 28 Filed 09/17/15 Page 6 of 7
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`and thus are not “substantially similar.” See Sturdza v. United Arab Emirates, 281 F.3d 1287,
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`1295-96 (D.C. Cir. 2002) (stating that a successful copyright infringement claim requires
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`“substantial similarity” such that “the accused work is so similar to the plaintiff’s work that an
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`ordinary reasonable person would conclude that the defendant unlawfully appropriated the
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`plaintiff’s protectible expression by taking material of substance and value”) (citation omitted)
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`(internal quotation marks omitted). Of course, neither the song title “The Keys to the Kingdom”
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`nor the phrase “keys to the kingdom” is copyrightable material. See 37 C.F.R. § 202.1(a) (“Words
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`and short phrases such as names, titles, and slogans” are not subject to copyright.”); Prunté, 699
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`F. Supp. 2d at 25 (“Of course, titles are not protectible, and neither are short, common phrases[.]”).
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`Relying on Dawson v. Hinshaw, 905 F.2d 731 (4th Cir. 1990), Plaintiff argues that, because
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`the songs at issue “are directed towards the imaginations and sentiments of ‘young people,’” the
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`“ordinary person” test for evaluating “substantial similarity” is inappropriate. Pl.’s Opp’n,
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`ECF No. 26, at 10. In so arguing, Plaintiff seems to suggest that expert testimony is required to
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`evaluate whether the infringing song is substantially similar to his own, and therefore, dismissal at
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`this stage would be inappropriate. In Dawson, the Fourth Circuit held that “obedience to the
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`undisputed principles of copyright law and the policy underlying the ordinary observer test . . .
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`require[s] orientation of the ordinary observer test to the works’ intended audience.” 905 F.2d at
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`733. However, the “flexible approach” adopted in Dawson has not been adopted in this Circuit,
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`especially as to readily accessible song lyrics, such as those at issue in this case. Sturdza, 281 F.3d
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`at 1300-01. Thus, the court declines to follow Dawson and concludes that this court is capable of
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`concluding as a matter of law, without the assistance of expert testimony, that the songs “Keys to
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`Case 1:14-cv-02073-APM Document 28 Filed 09/17/15 Page 7 of 7
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`the Kingdom” and “Kingdom” are not substantially similar.5 Plaintiff’s copyright infringement
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`claim therefore is dismissed.
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`Plaintiff’s Rule 60(b) Motion. Plaintiff filed a motion in this case styled “Plaintiff’s Formal
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`Motion Made Pursuant to Fed. R. Civ. P. Rule 60(b)(4)&(6), Based Upon After-Discovered
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`Extrinsic Fraud—Lack of Subject Matter Jurisdiction in Case 1:06-CV-0480; Plaintiff’s
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`Interpolated Affidavit Included Alongside Documentary Evidence and Memorandum of Law”
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`[hereafter “Formal Motion”]. ECF No. 9. As relief, Plaintiff asks that “the Judgment of Case
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`1:06-cv-0480 . . . be recalled or rescinded to reflect [its] abject nullity status, and the case . . . be
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`reset to [its] previous status regarding the (20) twenty songs of Plaintiff’s being unlawfully
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`regarded as belonging to the defendants in this case.” Id. at 15-16. The court reads Plaintiff’s
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`Formal Motion as a motion to set aside the judgment in Prunté under Rule 60(b).
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`The Formal Motion, however, is not properly before this court. Plaintiff should have filed
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`it before the judge who entered the judgment against him in Prunté, Judge Friedman. See Owens
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`v. District of Columbia, 631 F. Supp. 2d 48, 57 n.5 (D.D.C. 2009) (stating that “any Rule 60(b)
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`request for relief from judgment in [the prior action] must be addressed to [the judge assigned to
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`the prior action]”). The Formal Motion is therefore denied.
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`Conclusion. For the foregoing reasons, Defendants’ Motions to Dismiss are granted and
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`Plaintiff’s Formal Motion is denied. A separate Order accompanies this Memorandum Opinion.
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`Dated: September 17, 2015
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`Amit P. Mehta
`United States District Judge
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`5 This court also does not consider itself an ordinary “lay person” when it comes to hip-hop music and lyrics. The
`court has listened to hip hop for decades and considers among his favorite musical artists, perhaps as a sign of his age,
`Jay-Z, Kanye West, Drake, and Eminem.
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