Ballard v. Walker et al

Filing 54

MEMORANDUM AND ORDER for 47 Report and Recommendations: Magistrate Judge Fox's Report and Recommendation (Dkt. No. 47) is adopted and the amended complaint is dismissed as against Conte. Plaintiff's motion to amend (Dkt. No. 52) is denied. The Clerk is requested to enter judgment accordingly and close this case. (Signed by Judge Louis L. Stanton on 12/11/2013) (tn)

USDC SDNY
DOCr'IE:\T

ELECTRO\ICAllY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC

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/Jjilli 3

DATE FILED:

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- - - - - - - - - - - - -x
EMERSON DAVID BALLARD III,
Plaintiff,

11 Civ. 5874

- against -

(LLS)

MEMORANDUM AND ORDER

NATHAN WALKER, ULTRA MUSIC PUBLISHING
LLC, CHRISTOPHER (DEEP) HENDERS, d/b/a
GIFTED SOURCE MUSIC (ASCAP), and JOHN
CONTE, JR.,
Defendants.

- - - -x
er

entry

of

default

judgment

against

dispute over the rights to musical compositions,

Conte

in

this

the action was

referred to Magistrate Judge Fox to hold an inquest and report
and

recommend

Recommendation
recommended
Plaintiff

the

proper

dated

amount

October

18,

of

By

Report

and

Judge

Fox

Recommendation,

and

s.

2013,

Magistrate

aintiff be awarded no damages.
objected

to

the

Report

and

moved for leave to file a second amended complaint to cure the
defects identified by Magistrate Judge Fox.
For
Recommendation
denied.

reasons
is

adopted,

discussed

below,

and plaintiff's

the
motion

to

amend

is

A.

Magistrate
against

Conte

Judge
be

Fox

recommended

dismis

lack

that

plaintiff's

of

claims

juri

c

over Conte, among other reasons.
Conte must be
general

j

"subj ect

ction"

to

the J url

in New York,

Fed.

ction of
R.

P.

a

court of

4 (k) (1)

\

J ,

for personal jurisdiction over him.
Conte is a citizen of Georgia, Am.

1.

~

s.

A New York

ction over a non domiciliary

court may exercise J
301 if he is

York CPLR

§

business"

in New York

casual

but with a fair measure of permanence and continui

Tauza v.
-

----

.....~--------~-------

satis

sent in New

r New

is,

Coal Co.,
----------

"is

not occasional

220 N.Y.

............

ng the requirements of CPLR

by virtue of "doing

§

259,

267

(1917)

302, which provi

As to a cause of action
of
the acts enumerated in t
s section, a court
may exercise personal juri
ction over any
non-domiciliary,
or
s
executor
or
administrator, who in person or through an
agent:
1.
transac~s
any
iness within
state or contracts anywhere to supply
or services in the state; or

the

commits a tort
act within
state,
as to a cause of action
defamation of character arising from
act; or

the
for
he

2.

3. commi ts a tortious act without the
state causing injury to
or prope
within the state,
as to a cause of

-

2

or
"

or by

s that:

famation
if he

action for
from the act,

character

of

arisi

regul
y
does
or
solicits
business,
or
engages
in
any
r
persistent
course
of
conduct,
or
deri ves substantial revenue from goods
or consumed or services rendered,
in the state, or
(i)

( i i) expects or should reasonably
to have consequences in
the ac
state
and
derives
the
substantial
revenue
from
interstate
or
international commercei or
4. owns, uses or possesses
situated
thin ~he state.

any

real

(emphasis added)
Fox

strate
all

comolaint

ely

the

amended

complaint's

the

devoid

of

factual

and

12,

Rec.

Compl.

business'

any

that

the

jurisdiction

eads

all
e

CPLR 301's 'doi

Am.

all

5,

test because
ions

amended
under

In

ts

complaint

CPLR

§

302

complaint does not even mention that anyone did any

because "t
f

is

&

"
i

songwriter,"

and

insuffic ent to satis
t

that

ion that Conte "does business in the State of New York as
record

a

found

ac s

in

New

York,"

plead that the claims

id.,

and

t

not

inst Conte arise "out of the

transaction of business within the State," McGowan v.
N.Y.2d 268, 271

does

Smith,

2

(1981)

On that basis,

strate

- 3 ­

Fox recommended dismis ing

compl aint

for

istics Pt
(2d

Cir.

1

personal

ction,

Ltd. v. Yi Da Xin

2010) ("[B]e

judgment,

juri

it

may

a

first

see

Si

_ _ _ .. ~L_~~

619 F.3d 207,

court

assure

grants
itself

a

motion

that

it

for

213

de

has

personal

ction over the defendant.")
The

Court

has

recommendations
Motor

Cars

de

LLC

novo,

v.

2005),

and finds

in its

reviewed

care
and

Amato,

conclusions

over

Conte,

that

pIa
388

iff's

ng the

Fox's

objections,

F.Supp.2d

tr:e Report

and

Magistrate

250,

253

see

Adee

(S.D.N.Y.

and Recommendation is correct
of personal

1

tion

to

dismiss

Report and Recommendation is adopt

jurisdiction

on

that

basis.

respect.

that t

B.
Plaintiff moves to amend tr:e complaint
Leave

to
Fed.

req'c.lires. "

leave
f~t

lity

of

R.

to
the

Civ.

P.

amend

his

mot

first

to

1 (a)

include

amendment."

Merchant, 28 F.3d 246, 251
Plaintiff

freely

1

"

given

However,
undue

when

delay,

bad

v.

amend.

In

addition

to

the proposed

also alleges that:

4 ­

the

so

faitr:,

S.S.

)

.

compla nt

allegat ons

secoCld

or

Amer can

itations omitt

second amended

a

justice

"valid reasons for

Mackensworth

(2d Cir. 1994)

attaches

amended complaint,

a second time.

in

to
the

ameClded complaint

57.
Defendant Conte regul
does or
solicits business, or engages in any other
persistent course
conduct, and derives
substantial revenue from
ces rende
the state of New York.
Defendant Conte maint ns royalty
aring accounts at Broadcast Music Inc.
(herein "BMI") as a [sic] both a songwriter
a music publishing company for thirty
songs as listed on Exhibit A hereto. [1]
58.

BMI is located in New York.

59.

60.
Based upon information and belief,
Conte's account is maintained through BMI in
New York.
61.
Based upon information and belief,
Defendant has worked as a professional music
p
and songwriter in New York for the
recording artist
sional
known as
"Cassie.
1I

Based upon information and belief,
Defendant
Conte
has
negotiated
sample
clearance and music publishing agreements in
the
State of New York for
the
master
recording and music composition "Make Her
Say"
as
performed
by
Artist
professional
known as "Kid Cudi."
62.

Based upon information and belief,
63.
Defendant Conte has
ty accounts in New
York with various record companies.
The
"De
in

proposed
Conte

any

other

second

amended

complaint's

7,

ion

that

arly does or solicits business, or engages
persistent

course

of

conduct,

substantial revenue from services rendered,
York,"

all

lacks supporting factual all

The musical compositions at issue,
1 sted in Exhibit A.

derives

in the state of New
ions.

"Blame It" and "Make Her

5

and

All
II

ions

are both

New York,

and at some time
ely
"wi th a

support

the

conclusion

~~

id.

that

Conte

61,
is

62,

in

continui

fair measure of

N.Y. at 257,

~~

accounts in New York,

that Conte maintains royal

II

58-60,
do not

New

York

Tauza,
_ _­

220

..

such that it can be said that he "does business" in

New York under CPLR § 301.

ty payments for the

Al though Conte allegedly rece

id.

~~i

through

an

works at issue at a BMI account maintained in New York,
58 60,

mere

of

rece

money

its collection,

zation

o

pl

the

ntiff 's cl

CPLR

ms against Conte arise

transaction
dealings

of

with

plaintiff

were

?laintiff

does

those

business
plaintiff

York,

"out of

the

transaction

52 N.Y.2d at 271, as

Plaintiff's

302.

§

New

is not sufficient to plead that

of business u in New York, McGowan,
under

in

claims

in

arise

out

of

Conte's

ia,

where

ace,

took

and

his

Am.

Compl.

~~

Conte's

breach

Second

made,

Conte's

red

all
ses

to

ses.

j

the

location

of

iff also argues that
for

not

allege

"a quasi

~n

sdict ion pursuant

Conte's writer share

to

account.

CPLR
at

§

BMI

314,

rem basis

18 28.
of

stsJ

ed upon Defendant

and various

other royal

account.s at record companies located in New York,u Pl.'s

to

the

id

& Rec.

6,

and seeks leave to att.ach those accounts,

at 6 7.

6

CPLR

314 (2)

§

ce

allows

of

wi thou~

process

state:
[W]here a
_udgment
is demanded that
the
person to be served be excluded from a
vested or contingent interest in or lien
upon
specific
real
or
personal
property
wi thin the state i or that such an interest
or
1 ien
in
favor
of
ei ther
party
be
enforced,
at
defined or Ii
ted; or
otherwise
ti
the
title
to
such
including
an
action
of
or defensive interpleader.
However,

under

ction,
same test

"

fair

jurisdiction

only tenable

'F

l~

they

\AJashi
- - - -..

~'-........- ....

Here,
some

must

in

personam,u

his

other act

De

316

(1977),

evaluated

al
under

justice as governs

id.

at

207.

Thus,

royal ty accounts
ties

show

that

Internationa~

with New York,

310,

186

lS

Conte

Shoe Co.

v.

(1945)

Conte's alleged contacts with New York are that he at

time

receives

, 326 U.S.

rem,

U.S.

based on Conte's

and

"minima=- contacts"

in

433

ay and substantial

rem jurisdict

~n

Heitner,

quasi

of

assertions

quasi

v.

incl

juri

has

Shaffer

worked
royal

in New York
payments

in

the

through

music

field,

Broadcast

and

Music

that

Inc.,

he

which

does business in New York.
se

No

on

which

plaintiff

relies

his

action is al=-eged to have occurred in New York.
receipt
\\some

of

act

royal
by which

payments
the

in

New

defendant

York

purpose

cannot

causes

of

Conte's passive
be

ly avails

said

to

be

itself

of

the

357

cat

t

wi
of

fits and protect

thus invoking the
v.
a/
-----

ties

conducting act

lege

U.S.

235,

253

forum

State /

its laws/u

Hanson

Jurisdiction

(1958).

cannot

be

on CPLR § 314.

Accordingly,
complaint

is

pI

so

plaintiff's

denied
does

for

not

motion

futility,

to

file

as

a

plaintiff's

allege

adequate

jurisdiction

over Conte.

Conclusion
MagistYate Judge Fox's
47)

is

Conte.
The

and Recommendation

(Dkt.

No.

and the amended complaint is dismissed as
Plaintiff's

Cleyk

s

motion

to

amend

requested to enter

(Dkt.

judgment

No.

52)

ac

is

denied.

and close

this case.

So ordered.

Dated: New York,

NY
11, 2013

_~~.Stanton
sillM¥~
Louis L.
U.S.D.J.

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8

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