Poindexter v. Cash Money Records

Filing 34

OPINION. Based on the conclusions set forth above, the Complaint is dismissed without prejudice sua sponte. Leave is granted to replead an amended complaint within 20 days. (Signed by Judge Robert W. Sweet on 7/30/2014) (lmb)

USDCSD~'Y

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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DOCUM:ENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: X ~ ¥=+
•

JACQUELINE POINDEXTER,
Plaintiff,
-against-

13 Civ. 5882
OPINION

CASH MONEY RECORDS,
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.

.A

Sweet, D.J.

Pro se plaintiff Jacqueline Poindexter ("Poindexter" or
"Plaintiff") has submitted a letter,

see Jacqueline Poindexter v.

Cash Money Records, No. 13 Civ. 5882, ECF. No. 23, in response to
this Court's opinion and order dated April 8, 2014, Poindexter v.

Cash Money Records,
8,

2014)

Money

5882,

2014 WL 1383781

(the "April 8 Opinion") ,
("Cash

Records'

designate

13 CIV.

the

Money"

or

instant action as

Robert Poindexter,

(S.D.N.Y. Apr.

which granted defendant Cash
the

"Defendant")

related to

motion

an action

see Robert Poindexter v.

to

filed by

Cash Money Records,

No. 13 Civ. 1155 (the "Robert Poindexter Action"), and ordered an
opposition

from

Plaintiff or

face

dismissal

sua

sponte of

the

complaint filed by Plaintiff in the instant action on August 20,
2013 ("Complaint"). The April 8 Opinion entered the order against
Plaintiff as the Robert Poindexter Action,

found related to the

instant action, was dismissed via an opinion and order on March 3,
2014.

Poindexter v.

Cash Money Records,

818955 (S.D.N.Y. Mar. 3, 2014)

13 CIV.

1155,

2014 WL

(the "March 3 Opinion").

Based on the reasoning set forth below, the Complaint is
dismissed sua sponte.

Prior Proceedings
1

The Complaint

alleges

that

a

recording

titled "Still

Ballin" contains an unauthorized sample of a musical composition
and sound recording titled "Love Gonna Pack Up and Walk Out (Love
Gonna

Pack Up)," which infringes

these works.

Plaintiff's alleged rights

in

A detailed recitation of the facts alleged in the

Complaint and complaint filed in the Robert Poindexter Action (the
"Robert Poindexter Complaint") is provided in the March 3 and April
8 Opinions. Familiarity with those allegations is assumed.

In the March 3 Opinion, the Robert Poindexter Action was
dismissed on collateral estoppel and summary judgment grounds. See
March 3 Opinion, 2014 WL 818955, at *7. Subsequently, the April 8
Opinion

found

the

instant

action

to

be

related

to

the

Robert

Poindexter Action. The Robert Poindexter Complaint and Complaint
are virtually identical. See April 8 Opinion, 2014 WL 1383781, at
*2. Given the similarity of the two complaints, the April 8 Opinion
ordered the Plaintiff to file an opposition to a potential sua
sponte dismissal within twenty days.

Id.

Plaintiff submitted a letter motion on April 17,

2014

(the "April 17 Letter") in opposition to the potential sua sponte
dismissal.

The April

1 7 Letter contends

that:

( 1)

the

instant

action should not be dismissed before the appeal in the Robert
2

Poindexter Action is heard; (2) Plaintiff has a right to personally
file

a

lawsuit

for

infringement;

( 3)

that

a

prior proceeding,

Poindexter v. Jackson, No. 12 Civ. 1638, constitutes "new evidence

in

this

case"

or

complaint"; and

allows

(4)

Plaintiff

to

an

"submit

amended

Defendant's attorneys violated ethical rules

when it did not make this Court aware of the Poindexter v. Jackson
case. Plaintiff,

in a letter dated May 2, 2014,

video of the allegedly infringing work,

also submitted a

as well as

requested a

subpoena of the settlement agreement in Jackson.

The motion was marked fully submitted on June 25, 2014.

The Applicable Standards

Sua

circumstances,
n.11

(2d Cir.

sponte

dismissals

see Leonhard v.

1980)

may

appropriate

United States,

(citing Robins v.

Cir. 1963), cert. denied,

be

379 U.S.

974,

in

some

633 F.2d 599,

609

325 F.2d 929

(2d

Rarback,

85 S.Ct.

670, 13 L.Ed.2d

565 (1965); 5 C. Wright & A. Miller, Federal Practice and Procedure
§

1357 at 593 (1969)); Taub v. Hale,

355 F.2d 201, 202

(2d Cir.),

cert. denied, 384 U.S. 1007, 86 S.Ct. 1924, 16 L.Ed.2d 1020 (1966);

Fed.R.Civ.P. 12(e), particularly in cases involving frivolous in
forma pauperis complaints,

Federal

Practice

§

12. 07

see 28 U.S.C.
[ 2. -5]
3

( 198 7) .

§

1915(d);

However,

a

2A Moore's
court must

extend a certain measure of deference in favor of prose litigants.
912 F.2d 605, 606 (2d Cir.1990)

Nance v. Kelly,

(per curiam). The

court must use caution in ordering sua sponte dismissal of a pro
se complaint before

the adverse party has been

served and the

parties have had an opportunity to address the sufficiency of the
plaintiff's allegations. Anderson v. Coughlin, 700 F.2d 37, 41 (2d
Cir. 1983).

Nonetheless, a court has an obligation to determine that
a claim is not legally frivolous before permitting a plaintiff to
proceed.

See Fitzgerald v.

221 F.3d 362, 363

First East Seventh St.

(2d Cir. 2000)

Tenants Corp.,

(a district court may dismiss a

frivolous complaint sua sponte notwithstanding the fact that the
plaintiff paid the statutory filing fee);
Herkimer,

35 F.3d 77, 82

(2d Cir. 1994)

Wachtler v.

County of

(a district court has the

power to sua sponte dismiss a case for failure to state a claim);
Robinson

(N.D.N.Y.

v.

Brown,

Nov.

1,

No.
2012)

ll-CV-0758,
("The

law

2012
in

this

WL

6799725,

circuit

is

at

*19

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

2013);

Tuitt

v.

Chase,

(N.D.N.Y. June 27, 2014)

9:11-CV-0776

DNH/TWD,

(N.D.N.Y. Jan.4,
2014

WL

2927803

("[T]here is a responsibility on the court

to determine that an action states a claim and that the claim is
4

not frivolous before permitting a party to continue proceeding in
forma pauperis. ").

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),"
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 selfreleased 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

"collateral

claim was
estoppel

barred based

binds

not

only

on

res

the

j udica ta.

actual

However,

parties

to

a

lawsuit, but also their privies." Fulani v. Bentsen, 862 F. Supp.
5

1140, 1148

(S.D.N.Y. 1994); see also M.O.C.H.A.
689 F.3d 263,

City of Buffalo,

284

(2d Cir.

Society,

2012)

Inc.

v.

("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

(quoting Marvel Characters, Inc.
Cir.

2002))).

v.

in

a

prior

proceeding."

310 F.3d 280,

Simon,

288

(2d

The doctrine of privity extends the res judicata

effect of a prior judgment to nonparties who are in privity with
the

parties

Industries,

in

the

Inc.,

first
825

action.

F.2d

Amalgamated Sugar

634,

640

(2d

Cir.

Co.

1987).

v.

NL

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,
Poindexter
equally

to

Action

the
for

Plaintiff.

reasoning
collateral
Judge

behind
estoppel

Swain

found

barring
and
in

in
EMI

the

Robert

EMI

applies

that

Robert

Poindexter lacked standing to sue for infringement of his alleged
recording based on the terms of a 1998 agreement between Plaintiff
and his

co-producers,

on the

one hand,

and Atlantic Recording

Corporation, on the other (the "1998 Agreement"), and that Robert
Poindexter's "ownership rights in the masters" were "foreclose[d]"
6

by the 1998 Agreement and applicable law. EMI, 2012 WL 1027639, at
*3. The Complaint alleges that Plaintiff has "a written agreement
with the copyright owner(s)

granting me the right to personally

file" a complaint alleging copyright infringement,
~

see Complaint

10, a phrase also used in the Robert Poindexter Complaint,

Robert Poindexter Complaint

~

see

10. Robert Poindexter was unable to

provide an agreement separate from the 1998 Agreement that provides
him with any ownership rights over "Love Gonna Pack Up and Walk
Out (Love Gonna Pack Up)," and Plaintiff similarly has not provided
evidence of any agreement that establishes ownership rights over
the song in lieu of the 1998 Agreement. Given the privity between
Robert Poindexter and Plaintiff,

the reasoning given in EMI and

the March 3 Opinion apply equally to Plaintiff here, and Poindexter
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
for the song "Still Ballin" and the lack of evidence indicating
that Cash Money had any involvement with respect to the allegedly
infringing work. March 3 Opinion, 2014 WL 818955, at *8. Plaintiff
has

provided

the

music

video

in

which

displayed at the beginning of the video.
7

Defendant's

logo

was

She contends that the

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,
logo,

by

itself,

is

"the presence of this logo" and "[t]he

insufficient

to

establish

Cash

Money's

participation in the creation or release of the work."

Id.

video

Money's

is

not

new

involvement with

evidence

"Still

and

does

Ballin." The

not

show

Complaint

Cash

and

The

Plaintiff's

claims against Cash Money is no different from the claims in the
Robert Poindexter Complaint, and the Complaint in this action must
be dismissed on the same grounds.

Plaintiff

contends

that

the

Complaint

should

not

be

dismissed because she does have standing to sue for infringement.
Notwithstanding

Plaintiff's

standing,

the

reasoning

behind the

dismissal of the Robert Poindexter Complaint on summary judgment
grounds applies equally to Plaintiff's Complaint.

Similarly,

Plaintiff's

contention

that

the

Complaint

should not be dismissed until the appeal in the Robert Poindexter
Action is heard is mistaken.
this time,

Plaintiff's case,

if dismissed at

can be consolidated with the Robert Poindexter Action

and its appeal. See No. 14-788-CV (2d Cir. Filed Mar. 14, 2014)).

8

The Jackson case raised by Plaintiff has no bearing in
the instant matter. The Jackson case was settled and discontinued
without prejudice prior to the filings of any motions to dismiss
or opinions.

See

No.

12 Civ.

1638,

ECF No.

18.

No

settlement

agreement was filed, and no copy of the agreement exists with this
Court. The case involved a different defendant, and Plaintiff has
not given any discernible reason as to why the Jackson settlement
is dispositive here. As such,
this
other

settlement.
grounds,

Moreover,
and

there is no legal significance to

the Complaint is to be dismissed on

Plaintiff's

request

for

a

subpoena

of

the

Jackson settlement agreement is denied given the absence of any

compelling reason for such a subpoena.

9

Conclusion

Based on the conclusions set forth above, the Complaint
is dismissed without prejudice

sua sponte.

Leave is granted to

replead an amended complaint within 20 days.

It is so ordered.

Dated:

New York, New York
July
2014

1-..!J

U.S.D.J.

10