Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 1 of 11
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`.A
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`•
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`13 Civ. 5882
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`OPINION
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`----------------------------------------x
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`JACQUELINE POINDEXTER,
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`-against-
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`CASH MONEY RECORDS,
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`Plaintiff,
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`Defendant.
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`----------------------------------------x
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`A P P E A R A N C E S:
`
`PRO SE
`
`JACQUELINE POINDEXTER
`153-27 120 Avenue
`Jamaica, NY 11434
`
`ATTORNEYS FOR DEFENDANT
`
`SHAPIRO, ARATO & ISSERLES LLP
`500 Fifth Avenue, 40th Floor
`New York, NY 1010
`By: Cynthia S. Arato, Esq.
`James Darrow, Esq.
`
`
`
`USDCSD~'Y
`DOCUM:ENT
`ELECTRONICALLY FILED
`DOC#:
`DATE FILED: X ~ ¥=+
`
`.A
`
`•
`
`13 Civ. 5882
`
`OPINION
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`----------------------------------------x
`
`JACQUELINE POINDEXTER,
`
`-against-
`
`CASH MONEY RECORDS,
`
`Plaintiff,
`
`Defendant.
`
`----------------------------------------x
`
`A P P E A R A N C E S:
`
`PRO SE
`
`JACQUELINE POINDEXTER
`153-27 120 Avenue
`Jamaica, NY 11434
`
`ATTORNEYS FOR DEFENDANT
`
`SHAPIRO, ARATO & ISSERLES LLP
`500 Fifth Avenue, 40th Floor
`New York, NY 1010
`By: Cynthia S. Arato, Esq.
`James Darrow, Esq.
`
`
`
`Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 2 of 11
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`Sweet, D.J.
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`Pro se plaintiff Jacqueline Poindexter ("Poindexter" or
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`"Plaintiff") has submitted a letter, see Jacqueline Poindexter v.
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`Cash Money Records, No. 13 Civ. 5882, ECF. No. 23, in response to
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`this Court's opinion and order dated April 8, 2014, Poindexter v.
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`Cash Money Records, 13 CIV. 5882, 2014 WL 1383781 (S.D.N.Y. Apr.
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`8, 2014)
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`(the "April 8 Opinion") , which granted defendant Cash
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`Money Records'
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`("Cash Money" or
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`the "Defendant") motion
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`to
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`designate the instant action as related to an action filed by
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`Robert Poindexter, see Robert Poindexter v. Cash Money Records,
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`No. 13 Civ. 1155 (the "Robert Poindexter Action"), and ordered an
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`opposition from Plaintiff or face dismissal sua sponte of the
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`complaint filed by Plaintiff in the instant action on August 20,
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`2013 ("Complaint"). The April 8 Opinion entered the order against
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`Plaintiff as the Robert Poindexter Action, found related to the
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`instant action, was dismissed via an opinion and order on March 3,
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`2014. Poindexter v. Cash Money Records, 13 CIV. 1155, 2014 WL
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`818955 (S.D.N.Y. Mar. 3, 2014)
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`(the "March 3 Opinion").
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`Based on the reasoning set forth below, the Complaint is
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`dismissed sua sponte.
`
`Prior Proceedings
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`1
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`
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`Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 3 of 11
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`The Complaint alleges that a recording titled "Still
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`Ballin" contains an unauthorized sample of a musical composition
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`and sound recording titled "Love Gonna Pack Up and Walk Out (Love
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`Gonna Pack Up)," which infringes Plaintiff's alleged rights in
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`these works. A detailed recitation of the facts alleged in the
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`Complaint and complaint filed in the Robert Poindexter Action (the
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`"Robert Poindexter Complaint") is provided in the March 3 and April
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`8 Opinions. Familiarity with those allegations is assumed.
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`In the March 3 Opinion, the Robert Poindexter Action was
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`dismissed on collateral estoppel and summary judgment grounds. See
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`March 3 Opinion, 2014 WL 818955, at *7. Subsequently, the April 8
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`Opinion found the instant action to be related to the Robert
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`Poindexter Action. The Robert Poindexter Complaint and Complaint
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`are virtually identical. See April 8 Opinion, 2014 WL 1383781, at
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`*2. Given the similarity of the two complaints, the April 8 Opinion
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`ordered the Plaintiff to file an opposition to a potential sua
`
`sponte dismissal within twenty days. Id.
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`Plaintiff submitted a letter motion on April 17, 2014
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`(the "April 17 Letter") in opposition to the potential sua sponte
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`dismissal. The April 1 7 Letter contends that:
`
`( 1)
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`the instant
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`action should not be dismissed before the appeal in the Robert
`
`2
`
`
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`Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 4 of 11
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`Poindexter Action is heard; (2) Plaintiff has a right to personally
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`file a
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`lawsuit for infringement;
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`( 3)
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`that a prior proceeding,
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`Poindexter v. Jackson, No. 12 Civ. 1638, constitutes "new evidence
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`in this case" or allows Plaintiff to "submit
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`an amended
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`complaint"; and
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`(4) Defendant's attorneys violated ethical rules
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`when it did not make this Court aware of the Poindexter v. Jackson
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`case. Plaintiff, in a letter dated May 2, 2014, also submitted a
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`video of the allegedly infringing work, as well as requested a
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`subpoena of the settlement agreement in Jackson.
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`The motion was marked fully submitted on June 25, 2014.
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`The Applicable Standards
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`Sua
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`sponte dismissals may be appropriate
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`in
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`some
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`circumstances, see Leonhard v. United States, 633 F.2d 599, 609
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`n.11
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`(2d Cir. 1980)
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`(citing Robins v. Rarback, 325 F.2d 929
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`(2d
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`Cir. 1963), cert. denied, 379 U.S. 974, 85 S.Ct. 670, 13 L.Ed.2d
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`565 (1965); 5 C. Wright & A. Miller, Federal Practice and Procedure
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`§ 1357 at 593 (1969)); Taub v. Hale, 355 F.2d 201, 202 (2d Cir.),
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`cert. denied, 384 U.S. 1007, 86 S.Ct. 1924, 16 L.Ed.2d 1020 (1966);
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`Fed.R.Civ.P. 12(e), particularly in cases involving frivolous in
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`forma pauperis complaints, see 28 U.S.C. § 1915(d); 2A Moore's
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`Federal Practice § 12. 07
`
`[ 2. -5]
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`( 198 7) . However, a court must
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`3
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`
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`Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 5 of 11
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`extend a certain measure of deference in favor of prose litigants.
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`Nance v. Kelly, 912 F.2d 605, 606 (2d Cir.1990) (per curiam). The
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`court must use caution in ordering sua sponte dismissal of a pro
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`se complaint before the adverse party has been served and the
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`parties have had an opportunity to address the sufficiency of the
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`plaintiff's allegations. Anderson v. Coughlin, 700 F.2d 37, 41 (2d
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`Cir. 1983).
`
`Nonetheless, a court has an obligation to determine that
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`a claim is not legally frivolous before permitting a plaintiff to
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`proceed. See Fitzgerald v. First East Seventh St. Tenants Corp.,
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`221 F.3d 362, 363
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`(2d Cir. 2000)
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`(a district court may dismiss a
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`frivolous complaint sua sponte notwithstanding the fact that the
`
`plaintiff paid the statutory filing fee); Wachtler v. County of
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`Herkimer, 35 F.3d 77, 82 (2d Cir. 1994)
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`(a district court has the
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`power to sua sponte dismiss a case for failure to state a claim);
`
`Robinson v. Brown, No.
`
`ll-CV-0758,
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`2012 WL
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`6799725, at *19
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`(N.D.N.Y. Nov. 1, 2012)
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`("The
`
`law in this circuit is that a
`
`district court may sua sponte dismiss a frivolous complaint even
`
`if the plaintiff has paid the filing fee")
`
`(citations omitted),
`
`report and recommendation adopted, 2013 WL 69200 (N.D.N.Y. Jan.4,
`
`2013); Tuitt v. Chase, 9:11-CV-0776 DNH/TWD,
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`2014 WL 2927803
`
`(N.D.N.Y. June 27, 2014) ("[T]here is a responsibility on the court
`
`to determine that an action states a claim and that the claim is
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`4
`
`
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`Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 6 of 11
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`not frivolous before permitting a party to continue proceeding in
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`forma pauperis. ").
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`The Complaint Is Dismissed
`
`The Complaint is identical to the Robert Poindexter
`
`Complaint, which was dismissed in the March 3 Opinion. The March
`
`3 Opinion first held
`
`that Robert Poindexter was barred by
`
`collateral estoppel from raising the issue of his ownership of the
`
`recording "Love Gonna Pack Up and Walk Out (Love Gonna Pack Up),"
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`the same recording at issue in the Complaint, based on the opinion
`
`of Honorable Laura Taylor Swain in Poindexter v. EMI Record Group
`
`Inc., No. 11 Civ. 559(LTS) (JLC), 2012 WL 1027639 (S.D.N.Y. Mar.
`
`27, 2012). Second, the March 3 Opinion granted Defendant's motion
`
`for summary
`
`judgment as "Cash Money had no involvement" in the
`
`recording underlying the complaints for "Still Ballin" was self(cid:173)
`
`released by the artist Shad Gregory Moss, professionally known as
`
`Bow Wow
`
`("Bow Wow"), and not Cash Money.
`
`With respect
`
`to collateral estoppel
`
`in
`
`the
`
`instant
`
`action, the Defendant did not challenge Poindexter's standing and
`
`whether her claim was barred based on res
`
`j udica ta. However,
`
`"collateral estoppel binds not only
`
`the actual parties
`
`to a
`
`lawsuit, but also their privies." Fulani v. Bentsen, 862 F. Supp.
`
`5
`
`
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`Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 7 of 11
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`1140, 1148 (S.D.N.Y. 1994); see also M.O.C.H.A. Society, Inc. v.
`
`City of Buffalo, 689 F.3d 263, 284
`
`(2d Cir. 2012)
`
`("Collateral
`
`estoppel, or issue preclusion, prevents parties or their privies
`
`from relitigating in a subsequent action an issue of fact or law
`
`that was fully and fairly litigated in a prior proceeding."
`
`(quoting Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288
`
`(2d
`
`Cir. 2002))). The doctrine of privity extends the res judicata
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`effect of a prior judgment to nonparties who are in privity with
`
`the parties in the first action. Amalgamated Sugar Co. v. NL
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`Industries,
`
`Inc.,
`
`825 F.2d 634,
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`640
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`(2d Cir. 1987). Robert
`
`Poindexter is married to Plaintiff, and he has represented that he
`
`was authorized to discuss his wife's settlement on her behalf to
`
`counsel for Defendant. See Robert Poindexter Action, No. 13 Civ.
`
`1155, ECF No. 38. Consequently, privity does exist between Robert
`
`Poindexter and Plaintiff.
`
`Moreover,
`
`the
`
`reasoning behind barring
`
`the Robert
`
`Poindexter Action for collateral estoppel and
`
`in EMI applies
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`equally
`
`to Plaintiff.
`
`Judge Swain
`
`found
`
`in EMI
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`that Robert
`
`Poindexter lacked standing to sue for infringement of his alleged
`
`recording based on the terms of a 1998 agreement between Plaintiff
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`and his co-producers, on the one hand, and Atlantic Recording
`
`Corporation, on the other (the "1998 Agreement"), and that Robert
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`Poindexter's "ownership rights in the masters" were "foreclose[d]"
`
`6
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`
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`Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 8 of 11
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`by the 1998 Agreement and applicable law. EMI, 2012 WL 1027639, at
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`*3. The Complaint alleges that Plaintiff has "a written agreement
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`with the copyright owner(s) granting me the right to personally
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`file" a complaint alleging copyright infringement, see Complaint
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`~ 10, a phrase also used in the Robert Poindexter Complaint, see
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`Robert Poindexter Complaint ~ 10. Robert Poindexter was unable to
`
`provide an agreement separate from the 1998 Agreement that provides
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`him with any ownership rights over "Love Gonna Pack Up and Walk
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`Out (Love Gonna Pack Up)," and Plaintiff similarly has not provided
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`evidence of any agreement that establishes ownership rights over
`
`the song in lieu of the 1998 Agreement. Given the privity between
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`Robert Poindexter and Plaintiff, the reasoning given in EMI and
`
`the March 3 Opinion apply equally to Plaintiff here, and Poindexter
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`is barred from bringing the instant action on collateral estoppel
`
`grounds.
`
`The March 3 Opinion also dismissed the Robert Poindexter
`
`Action on summary judgment grounds based on the evidence provided
`
`by the Defendant indicating that Bow Wow was solely responsible
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`for the song "Still Ballin" and the lack of evidence indicating
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`that Cash Money had any involvement with respect to the allegedly
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`infringing work. March 3 Opinion, 2014 WL 818955, at *8. Plaintiff
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`has provided
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`the music video
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`in which Defendant's
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`logo was
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`displayed at the beginning of the video. She contends that the
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`7
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`
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`Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 9 of 11
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`inclusion of this video is sufficient to establish that Cash Money
`
`was involved in the infringing work. However, as previously noted
`
`in the March 3 Opinion, "the presence of this logo" and "[t]he
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`logo, by
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`itself,
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`is
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`insufficient
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`to establish Cash Money's
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`participation in the creation or release of the work." Id. The
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`video
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`is not new evidence and does not
`
`show Cash Money's
`
`involvement with "Still Ballin." The Complaint and Plaintiff's
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`claims against Cash Money is no different from the claims in the
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`Robert Poindexter Complaint, and the Complaint in this action must
`
`be dismissed on the same grounds.
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`Plaintiff contends that the Complaint should not be
`
`dismissed because she does have standing to sue for infringement.
`
`Notwithstanding Plaintiff's standing,
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`the reasoning behind the
`
`dismissal of the Robert Poindexter Complaint on summary judgment
`
`grounds applies equally to Plaintiff's Complaint.
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`Similarly, Plaintiff's contention that the Complaint
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`should not be dismissed until the appeal in the Robert Poindexter
`
`Action is heard is mistaken. Plaintiff's case, if dismissed at
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`this time, can be consolidated with the Robert Poindexter Action
`
`and its appeal. See No. 14-788-CV (2d Cir. Filed Mar. 14, 2014)).
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`8
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`
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`Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 10 of 11
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`The Jackson case raised by Plaintiff has no bearing in
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`the instant matter. The Jackson case was settled and discontinued
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`without prejudice prior to the filings of any motions to dismiss
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`or opinions. See No. 12 Civ. 1638, ECF No. 18. No settlement
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`agreement was filed, and no copy of the agreement exists with this
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`Court. The case involved a different defendant, and Plaintiff has
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`not given any discernible reason as to why the Jackson settlement
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`is dispositive here. As such, there is no legal significance to
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`this settlement. Moreover,
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`the Complaint is to be dismissed on
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`other grounds, and Plaintiff's request for a subpoena of the
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`Jackson settlement agreement is denied given the absence of any
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`compelling reason for such a subpoena.
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`9
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`Case 1:13-cv-05882-RWS Document 34 Filed 08/05/14 Page 11 of 11
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`Conclusion
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`Based on the conclusions set forth above, the Complaint
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`is dismissed without prejudice sua sponte. Leave is granted to
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`replead an amended complaint within 20 days.
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`It is so ordered.
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`Dated:
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`New York, New York
`July 1-..!J 2014
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`U.S.D.J.
`
`10
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