Reach Music Publishing, Inc et al v. Warner/Chappell Music, Inc. et al

Filing 129

ORDER DENYING MOTION FOR RECONSIDERATION AND AMENDING CONCLUDING PARAGRAPH OF THE SEPTEMBER 7, 2011, MEMORANDUM OPINION AND ORDER re: 101 MOTION for Reconsideration filed by Protoons Inc. For the reasons set forth within, the motion for reconsideration is denied and the September 7 Opinion is amended. This Order resolves docket entry number 101. (Signed by Judge Laura Taylor Swain on 3/5/2012) (ab) (Signed by Judge Laura Taylor Swain on 3) (ab)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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REACH MUSIC PUBLISHING, INC. and
DAVID REEVES,
Plaintiffs,

-v-

No. 09 Civ. 5580 (LTS)

WARNERICHAPPELL MUSIC, INC. and
PROTOONS, INC.,
Defendants.

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PROTOONS, INC.,
Counterclaim Plaintiff,
- v-

REACH MUSIC PUBLISHING, INC. and
DAVID REEVES,
Counterclaim Defendants,
- andREACH GLOBAL, INC. and MICHAEL
CLOSTER,
Additional Counterclaim
Defendants.

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ORDER DENYING MOTION FOR RECONSIDERATION AND

AMENDING CONCLUDING PARAGRAPH OF THE

SEPTEMBER

7, 2011, MEMORANDUM OPINION AND ORDER

On November 1,2011, Counterclaim PlaintiffProtoons, Inc. ("Protoons"), filed a
motion for reconsideration of the Court's September 7, 2011, Memorandum Opinion and Order
(the "September 7 Opinion"), which granted in part and denied in part the Counterclaim
Defendants' motion to dismiss. In its motion, Protoons asks the Court to reconsider its dismissal of

REACH. MOTION FOR RECO'lSIDERATIO'lWPD

VERSION 315/12

Protoons' claims for breach of contract and tortious interference. The Court has considered
thoroughly the parties' arguments and submissions. For the following reasons, the motion for
reconsideration is denied and, furthermore, the first concluding paragraph of the September 7
Opinion is amended as indicated below.
The background of this case is detailed in the September 7 Opinion and the October
23,2009, Memorandum Order. See Reach Music Pub., Inc. v. Warner/Chappell Music, Inc., No.
09-CIV-5580 (LTS), 2011 WL 3962515 (S.D.N.Y. Sept. 7,2011); Reach Music Pub., Inc. v.
Warner/Chappel] Music, Inc., No. 09-CIV-5580 (LTS), 2009 WL 3496115 (S.D.N.Y. Oct. 23,
2009). The parties' familiarity with the case is presumed.
The standard of review for a motion for reconsideration, found in Local Civil Rule
6.3, is the same as under Federal Rule of Civil Procedure 59(e). Local Civ. R. 6.3; Fed. R. Civ. P.
59(e); Williams v. N.Y. City Dep't ofCorr.. 219 F.R.D. 78, 83 (S.D.N.V. 2003). The movant
bears the heavy burden of demonstrating that the Court "overlooked controlling decisions or factual
matters that were put before it on the underlying motion." Mina Inv. Holdings Ltd. v. LefkowitZ',
184 F.R.D. 245 (S.D.N.V. 1999). Moreover, Local Rule 6.3 generally precludes a movant from
"advancing new facts, issues or arguments not previously presented to the court." United States v.
Tillman, 07 CR. 1209 (LTS), 2009 WL 1270301 (S.D.N.Y. May 6,2009) (internal quotations
omitted). A motion for reconsideration is "not intended as a vehicle for a party dissatisfied with
the Court's ruling to advance new theories that the movant failed to advance in connection with the
underlying motion." Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003). Nor is it a
chance for a party to take a "second bite at the apple." Rafter v. Liddle, 288 Fed. App'x 768, 769
(2d Cir. 2008).

REACH, MOTION FOR RECONSILlERATlONWPD

VERS:ON 3/5/12

2

Protoons contends that the Court failed to consider contractual language that
purported to convey exclusive rights in certain musical compositions to Protoons' successor in
interest. This argument is unavailing, as the Court considered the language cited by Protoons and
determined that dismissal of the breach of contract and tortious interference claims was warranted,
notwithstanding the cited language. Protoons also asserts that Counterclaim Defendants breached
the covenants of good faith and fair dealing implicit in the disputed contract and that the implied
covenants of good faith and fair dealing necessitate sustaining the tortious interference claims.
These arguments, as they are premised on the implied covenant of good faith and fair dealing,
constitute new theories of the case that Protoons "failed to advance in connection with the
underlying motion" and which, therefore, are not properly considered pursuant to a motion for
reconsideration. See Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003).
In their memoranda of law, the parties seek clarification of the first concluding
paragraph of the September 7 Order, which is hereby amended to read as follows:
For the foregoing reasons, Counterclaim Defendants' motion to dismiss
the Amended Counterclaims is denied in part and granted in part. The motion to
dismiss is denied as to the First Counterclaim against Reeves insofar as it asserts breach
of the covenant not to sue in the Songwriter Agreements; the motion is granted with
regard to the breach of contract allegations based on Reeves' entry into the 2007
Agreement. The motion to dismiss is granted as to the Second Counterclaim, for
slander of title. The Third Counterclaim is dismissed insofar as it asserts tortious
interference with rights in relation to the Run-D.M.C.-related entities, and insofar as
it alleges tortious interference based on the Reach Parties' inducement of Reeves to
enter into the 2007 Agreement. The motion to dismiss is denied as to the tortious
interference claim against the Reach Parties in connection with the breach of the
covenant not to sue provision ofthe Songwriter Agreements. The motion to strike is
denied in its entirety.

REACH,MOTlOt; FOR RECONSIDERATIONWPD

VERSION 3/5/l 2

CONCLUSION

For the foregoing reasons, the motion for reconsideration is denied and the
September 7 Opinion is amended. This Order resolves docket entry number 101.
SO ORDERED.
Dated: New York, New York
March 5, 2012

~ORSWAIN

United States District Judge

RI'AC'Ri'vlOTIO;J FOR REC01'>SIDERATlONWPD

VERSI01'> 315112

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