Capitol Records, LLC v. Redigi Inc.

Filing 244

MEMORANDUM OF LAW in Support re: 243 MOTION for Judgment Registration. . Document filed by Capitol Christian Music Group, Inc., Capitol Records, LLC, Virgin Records IR Holdings, Inc.. (Mandel, Richard)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

X

CAPITOL RECORDS, LLC, CAPITOL
CHRISTIAN MUSIC GROUP, INC. and
VIRGIN RECORDS IR HOLDINGS, INC.,

12 Civ. 0095 (RJS)

Plaintiffs,
-againstREDIGI INC., JOHN OSSENMACHER and
LARRY RUDOLPH a/k/a LAWRENCE S.
ROGEL,
Defendants.

X

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT
OF MOTION TO REGISTER JUDGMENT IN OTHER DISTRICTS
Plaintiffs Capitol Records, LLC, Capitol Christian Music Group, Inc. and Virgin Records
I Holdings, Inc. (collectively "Plaintiffs") submit this memorandum of law in support of their
R
motion, pursuant to 28 U.S.C. § 1963, for an order authorizing registration of the final judgment
in this case in the District Courts in the States of Massachusetts, California and Florida.
PRELIMINARY STATEMENT
A final judgment was entered in this action on consent of all parties on June 3, 2016
(Docket No. 222) (the "Judgment"). Mandel Decl. ¶ 2. The Judgment sets forth the form of
injunction to which the parties agreed, preserves Defendants' right to appeal the Court's prior
l
iability finding on summary judgment and provides in paragraph 4 for stipulated damages to be
awarded against the Defendants jointly and severally in the amount of three million five hundred
thousand dollars ($3,5000,000). Id. Defendants have filed a Notice of Appeal, but have not
posted a bond to secure the damages provided for in the Judgment pending appeal. Id. ¶ 3.
Plaintiffs' post judgment investigation into Defendants' assets did not reveal the existence of any

29503/003/2102806.1

assets located within the State of New York that could be potentially available to satisfy the
Judgment. Id. 7 4-5. Indeed, none of the Defendants appear to reside in New York. Id.
Defendant Larry Rogel resides and is employed in Massachusetts, where defendant ReDigi Inc.
was based while it was in operation. Id. im 6-7. Defendant John Ossenmacher appears to reside
in California and/or Florida. Id. 118. Accordingly, under these circumstances, it appears that
Plaintiffs cannot effectively enforce the Judgment in New York and that their only recourse to
obtain satisfaction of the Judgment is to register it in other jurisdictions in which one or more of
the Defendants reside and appear to have assets.
ARGUMENT
Under 28 U.S.C. § 1963, "a judgment in 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 to appeal or when
ordered by the court that entered the judgment for good cause shown." BC Media Funding Co.
I & Media Funding Co. v. Lazauskas, 2009 WL 290526, at *4 (S.D.N.Y. Feb. 6, 2009) (internal
I
quotations omitted) (emphasis in original).
I Fasolino Foods Co., Inc. v. Banca Nazionale Del Lavoro, 1991 WL 107440 (S.D.N.Y.
n
June 7, 1991), the Court analyzed the "good cause" requirement of 28 U.S.C. § 1963. The Court
ruled that "where an appeal is pending, good cause is established by showing that the judgment
debtor lacks assets in the rendering district but has assets in another district." Id. at *2. The
Court explained that such a "construction furthers Congress' underlying purpose in amending the
statute to prevent judgment debtors from frustrating the rights of judgment creditors." Id. The
Court also noted that 141other courts faced with the issue reached the same conclusion." Id. at
*1 (citing cases).

-229503/003/2102806.1

The present circumstances fall squarely within the rule cited in Fasolino for showing
"good cause." None of the Defendants reside in or appear to have any assets located in New
York. Mr. Rogel resides in a million dollar home he owns (with his wife) in Massachusetts, and
Mr. Rogel also appears to be employed there by MIT. Mandel Decl. 116. Massachusetts is also
the same location where defendant ReDigi Inc. has been historically based and where it listed its
headquarters as of the time of trial 3 months ago. Id. ¶ 7. Accordingly, the Judgment is
appropriately registered in the District of Massachusetts. See, e.g., Owen v. v. Soundview Fin.
Group, Inc., 71 F. Supp. 2d 278, 279 (S.D.N.Y. 1999) (authorizing registration of judgment in
California district courts where defendant currently lived in Newport Beach, California, was
employed by a company located there and had no assets in New York).
Moreover, Plaintiffs' investigative efforts have uncovered evidence that Mr.
Ossenmacher has had significant contacts with both the States of Florida and California. Mr.
Ossenmacher has listed a Florida address in connection with two vehicles registered in his name,
and also shows a Florida address in connection with his current voter registration status. Mandel
Decl. ¶ 8. In addition, the most recent available address reported for Mr. Ossenmacher's actual
residence is in Laguna Niguel, California. Id. Mr. Ossenmacher has also had a number of other
judgments entered against him showing additional addresses in California. Id. Based on the
foregoing, it appears that Mr. Ossenmacher resides in California and/or Florida, and any assets
he owns are likely to be located there.
Plaintiffs "need not show exact evidence of assets" at this stage in order to support
registration of the Judgment in other districts. Owen, 71 F. Supp. 2d at 279 (quoting AT&T
Corp. v. Public Serv. Enters. of Pennsylvania, Inc., 1999 U.S. Dist. LEXIS 13108, at *20
(S.D.N.Y. Aug. 24, 1999)). Rather, where there do not appear to be any available known assets

-329503/003/2102806.1

in New York, Defendants can offer no substantial reason why the Judgment should not be
protected by registration in the areas where they live and/or work. Owen, 71 F. Supp. 2d at 279.
CONCLUSION
For the foregoing reasons, the Court should grant Plaintiffs' motion permitting the
Judgment to be registered in the District Courts of Massachusetts, California and Florida.
Dated: New York, New York
July 8, 2016

Respectfully submitted,
COWAN, LIEBOWITZ & LATMAN, P.C.
Attorneys for Plaintiffs
By:
Richard S. Mandel
114 W. 47th Street
New York, New York 10036
[phone]

-429503/003/2102806.1