Capitol Records, LLC v. Redigi Inc.

Filing 231

LETTER addressed to Judge Richard J. Sullivan from Jonathan Z. King dated June 23, 2016 re: Request for a pre-motion conference in connection with Plaintiffs' proposed motion to register the Stipulated Final Judgment (Docket No. 22). Document filed by Capitol Christian Music Group, Inc., Capitol Records, LLC, Virgin Records IR Holdings, Inc..(King, Jonathan)

COWAN
LIEBOWITZ
LATMAN

Cowan, Liebowitz & Latman, P.C.
133 Avenue of the Americas
1
New York, NY 10036
[phone] Tel
[phone] Fax
www.c11.corn
Jonathan Z. King
[phone]
[e-mail]

June 23, 2016
By E-mail (sulliyannysdchambers(&,nysd.uscourts.gov) and ECF
Hon. Richard J. Sullivan, U.S.D.J.
Thurgood Marshall United States Courthouse
40 Foley Square
New York, NY 10007
Re:

Capitol Records, LLC v. ReDigi Inc., 12 cv. 0095 (RJS)

Dear Judge Sullivan:
We represent Plaintiffs in the above-captioned action and write in accordance with Rule
2.A of the Court's Individual Practices to request a pre-motion conference in connection with
Plaintiffs' proposed motion to register the Stipulated Final Judgment (Docket No. 22) (the
"Stipulated Judgment") in the United States District Courts for the District of Massachusetts, the
Central District of California, and the Southern District of Florida. None of the Defendants is
located in New York, and based on preliminarily investigations, none appear to have any assets
in this State to satisfy the damage award of $3,500,000 set forth in Paragraph 4 of the Judgment.
As set forth below, pursuant to 28 U.S.C. §1963, Plaintiffs respectfully request that the Court
allow registration of the Judgment in the aforementioned Districts, where Defendants are located
and/or appear to have assets, so that Plaintiffs may seek to enforce the Stipulated Judgment. The
relevant facts and law are as follows.
On June 3, 2016, the Court endorsed the Stipulated Judgment, which sets forth the form
of injunction to which the parties agreed, preserves Defendants rights to appeal the liability
finding on summary judgment, and provides in paragraph 4, "the parties stipulate that the amount
of damages awarded to Plaintiffs against the ReDigi Parties jointly and severally shall be three
million five hundred thousand dollars ($3,500,000)." Defendants have not posted a bond to
secure the damages set forth in the Stipulated Judgment. On June 22, 2016, counsel for ReDigi
I and counsel for the individual Defendants Ossenmacher and Rudolph each filed pre-motion
nc.
letters seeking to withdraw from the case and proposing to state their reasons under seal, for the
Court's in camera review (Docket Nos. 229 and 230). No other attorney has filed any notice of
appearance, notwithstanding that corporate defendant ReDigi, Inc. may not appear pro se.
Plaintiffs' investigations reveal that none of the Defendants are located in or appear to have any
assets in the State of New York.
Pursuant to Fed. R. Civ. P. 62(a), "no execution may issue on a judgment , nor may
proceedings be taken to enforce it, until 14 days have passed after its entry." More than 14 days

30642/000/2097044.1

Cowan, Liebowitz & Latman, P.C.
Hon. Richard J. Sullivan, U.S.D.J.
June 23, 2016
Page 2
have passed since entry of the Stipulated Judgment on June 3, 2016. However, pursuant to 28
U.S.C. §1963, enforcement of a money judgment entered by one District Court may not proceed
in any other District prior to the judgment becoming final by appeal or the expiration of the
appeal period, except by motion. One Court in this District has set forth the procedure and
standards for such a motion as follows:
28 U.S.C. § 1963 provides that "[a] judgment in an action for the recovery of money or
property entered in any...district court" may be registered for enforcement in another
judicial district "when the judgment has become final by appeal or expiration of the time
for appeal or when ordered by the court that entered the judgment for good cause shown."
(emphasis added.) "'Good cause' is established upon a mere showing that the party
against whom the judgment has been entered has substantial property in the other foreign
district and insufficient property in the rendering district to satisfy the judgment.'" Owen
v. Soundview Fin. Group, Inc., 71 F. Supp. 2d 278, 279 (S.D.N.Y. 1999) (internal
citation omitted).
BC Media Funding Co. II & Media Funding Co. v. Lazauskas, 2009 WL 290526, at *4
(S.D.N.Y. Feb. 6, 2009).
As noted above, none of the Defendants appear to be located in or to have assets in New
York. Plaintiffs' preliminary investigations suggest that the Defendants are located in
Massachusetts and, in the case of one of the individual Defendants, in either California or
Florida. It also appears that Defendants may have real property and other assets in one or more
of these states. Defendants' failure to post a bond, and the proposed withdrawal of all defense
counsel, suggest that Plaintiffs' ability to enforce the Stipulated Judgment may be in jeopardy
without the ability to take prompt action in these jurisdictions where such assets as Defendants
may have appear to be located. Given these circumstances, Plaintiffs respectfully submit that
they have established good cause for immediate registration of the Stipulated Judgment in the
Districts of Massachusetts, the Central District of California, and the Southern District of
Florida, regardless of whether Defendants file a notice of appeal (due on July 5, 2016) or
otherwise proceed with an appeal. See BC Media, 2009 U.S. Dist. LEXIS 8940, *4 (good cause
for registration of judgment in Districts of Connecticut and New Jersey, where defendants
appeared to have real property in those states but no assets in New York).
Plaintiffs note that the parties are scheduled for a pre-motion conference regarding
Plaintiffs' proposed motion for attorney's fees on June 29, 2016. We would be prepared to
discuss the motion proposed in this letter at the same conference. We thank the Court for its
attention to the foregoing.
Respectfully,

30642/000/2097044.1

Cowan, Liebowitz & Latman, P.C.
Hon. Richard J. Sullivan, U.S.D.J.
June 23, 2016
Page 3
cc: Gary Adelman, Esq. (via email)
Sarah Matz, Esq. (via email)
Michael DeVincenzo, Esq. (via email)
Mark Raskin, Esq. (via email)

30642/000/2097044.1