Coleman v. System Dialing LLC et al
Filing
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OPINION & ORDER....The plaintiffs motion for an extension of time to file a Rule 25 motion pursuant to Rule 6(b) is granted. Defendants October 22, 2015 motion to dismiss is denied insofar as it is predicated on the plaintiffs failure to timely substitute. The Court reserves decision regarding the other issues raised in defendants motion to dismiss. (Signed by Judge Denise L. Cote on 12/18/2015) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DENARDO COLEMAN as Guardian for
:
ORNETTE COLEMAN,
:
Plaintiff,
:
:
-v:
:
SYSTEM DIALING LLC; JORDAN McLEAN;
:
AMIR ZIV; AND JOHN DOES 1-10,
:
:
Defendants.
:
:
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APPEARANCES:
15cv3868 (DLC)
OPINION & ORDER
For Plaintiff:
Brian C. Caplan
Robert W. Clarida
REITLER KAILAS & ROSENBLATT, LLC
885 Third Avenue, 20th Floor
New York, NY 10022
For Defendants System Dialing LLC, et al.:
Justin S. Stern
FRIGON MAHER & STERN LLP
1271 Avenue of the Americas, Suite 4300
New York, New York 10020
Jonathan D. Plaut
COHAN RASNICK MYERSON PLAUT LLP
One State Street, Suite 1200
Boston, MA 02109
DENISE COTE, District Judge:
Plaintiff Denardo Coleman is the adult son of Ornette
Coleman, a jazz musician and composer.
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Plaintiff, as his
father’s guardian, alleges that defendants have sold and
continue to sell unauthorized recordings of performances by
Ornette Coleman in violation of federal and state law.
Defendants have moved to dismiss the case pursuant to various
provisions of the Federal Rules of Civil Procedure, as well as
the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
For the
following reasons, defendants’ motion to dismiss is denied to
the extent it is predicated on Federal Rule of Civil Procedure
25.
Decision on the issue of arbitration is reserved pending
discovery.
BACKGROUND
These facts are taken from the pleadings and a supplemental
declaration by the plaintiff. 1
Plaintiff Denardo Coleman is the
adult son and sole heir of Ornette Coleman.
In July 2009, the
individual defendants Jordan McLean (“McLean”) and Amir Ziv
(“Ziv”) visited Ornette Coleman at his home to participate in
live musical performances.
McLean and Ziv recorded a number of
these performances.
Ornette Coleman’s physical health and mental acuity began
“Where jurisdictional facts are placed in dispute, the court
has the power and obligation to decide issues of fact by
reference to evidence outside the pleadings, such as
affidavits.” APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003)
(citation omitted).
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deteriorating in 2010, and he began limiting his public
performances.
By late 2011, he was receiving in-home medical
care, and from 2012 until his death rarely left his home.
Denardo Coleman was appointed Ornette Coleman’s legal
guardian on September 21, 2013.
Coleman’s business manager.
He also served as Ornette
In 2014, Denardo Coleman became
aware that defendants were selling a recording they made of
their performance with Ornette Coleman in 2009, apparently
without authorization.
The plaintiff contacted defendants to
demand that they cease selling the recording.
When they
declined, in his role as his father’s guardian, plaintiff
commenced this action on May 19, 2015, alleging multiple claims
under state and federal law.
On June 9, defendants informed plaintiff, for the first
time, that a contract between the defendants and Ornette Coleman
was executed on November 28, 2011.
Defendants asserted in their
July 2 answer to plaintiff’s complaint numerous affirmative
defenses, including the existence of a contract governing the
recordings at issue that contains a binding arbitration clause.
Ornette Coleman died on June 11, 2015.
On July 17,
plaintiff’s counsel notified the Court and opposing counsel of
Ornette Coleman’s death in a letter motion, filed on ECF, to
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adjourn the initial pretrial conference.
That letter began,
We are counsel to plaintiff Denardo Coleman as
Guardian for Ornette Coleman in [this] action. On
June 10, 2015, Ornette Coleman died. Plaintiff
intends to substitute a new plaintiff in this case
when certain estate matters have been taken care of.
At an initial pretrial conference of July 24, the Court set a
tentative deadline of September 25 for amendment of the
complaint; the Court requested an update on the status of
substitution by that date if the matter was still pending in
Surrogate’s Court.
On September 25, plaintiff submitted via ECF
an update on the substitution of a new plaintiff.
That letter
stated that “[t]he necessary documents have been gathered and
provided to counsel for the estate, and are expected to be on
file shortly.”
Defendants moved to dismiss on October 22.
Among other
things, they argued that Ornette Coleman “has no standing to
maintain this action” because he was not the administrator of
Denardo Coleman’s estate and that, in any event, the November
2011 contract between the parties requires that any disputes be
submitted to arbitration.
The defendants did not argue that the
90-day time period for filing a substitution prescribed by Rule
25, Fed. R. Civ. P., had expired on October 15, 2015.
Plaintiff
opposed the motion on November 13, disputing the existence of
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the contract and representing that he anticipated receiving
letters of administration from the New York Surrogate’s Court
sometime in December.
On November 17, at a teleconference regarding a separate
and unrelated motion to disqualify defendants’ counsel,
defendants raised a new argument based on standing.
For the
first time, defendants argued that the plaintiff lacked standing
because he had failed to comply with Rule 25, Fed. R. Civ. P.,
which governs the substitution of plaintiffs.
Specifically, the
defendants argued that the July 17 letter served as the
“statement noting the death” of Ornette Coleman and that the 90day period prescribed by that Rule had expired on October 15.
The motion to dismiss was fully submitted on November 20.
In their reply memorandum filed on that date, defendants
elaborated upon their recent Rule 25 argument.
Accordingly, on
November 30, the Court permitted the parties to brief the issue
of whether Rule 25 was applicable to these facts, as well as, if
so, whether the plaintiff would be entitled to a deadline
extension under Rule 6(b).
On December 1, the plaintiff applied to the Supreme Court
of New York County for authority to litigate this action pending
his appointment as administrator.
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The next day the court issued
an ex parte order, pursuant to N.Y. Mental Hygiene Law §
81.21(a)(2), that expanded Denardo Coleman’s authority as
Guardian in order “to allow the Guardian to continue
prosecuting” this action.
The order further provided that the
“expanded authority shall continue until an administrator is
appointed and qualifies to represent” Ornette Coleman’s estate.
On December 4, plaintiff submitted a copy of this order along
with his supplemental memorandum of law regarding Rules 25 and
6(b).
Supplemental briefing was completed on December 9.
DISCUSSION
Defendants have moved to dismiss the complaint pursuant to
both the Federal Rules of Civil Procedure and the FAA.
Because
the issue of compliance with Rule 25 is a threshold issue, it is
necessary to dispose of it first.
Defendants initially moved to dismiss under Federal Rule of
Civil Procedure 12(b)(1), arguing briefly that, because “[o]nly
[a decedent’s] estate may maintain a legal action,” Ornette
Coleman “has no standing to maintain this action.”
Defendants
expanded upon this argument in their reply memorandum of law,
grounding their jurisdictional argument instead in Federal Rule
of Civil Procedure 25 (“Rule 25”).
Rule 25(a)(1) provides that
If a party dies and the claim is not extinguished, the
court may order substitution of the proper party. A
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motion for substitution may be made by any party or by
the decedent's successor or representative. If the
motion is not made within 90 days after service of a
statement noting the death, the action by or against
the decedent must be dismissed.
(Emphasis added.)
Rule 25 “establishes a time limit,” which starts running at
the “time information of the death is provided by means of a
suggestion of death upon the record.”
Unicorn Tales, Inc. v.
Banerjee, 138 F.3d 467, 469 (2d Cir. 1998) (citation omitted). 2
“Mere reference to a party's death in court proceedings or
pleadings is not sufficient to trigger the limitations period
for filing a motion for substitution,” even if “the parties have
knowledge of a party's death.”
Grandbouche v. Lovell, 913 F.2d
835, 836-37 (10th Cir. 1990) (per curiam).
Rather, “a party
must formally suggest the death of the party upon the record.”
Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994).
The Federal
Rules of Civil Procedure provide a form -- Official Form 9 -for use in such situations.
Once triggered by a formal
“statement noting the death,” the 90-day time period can only be
extended by a motion pursuant to Rule 6(b).
See Unicorn Tales,
When Rule 25(a) was stylistically revised in 2007, the phrase
“after death is suggested upon the record by service of a
statement of the fact of the death” was replaced by the current
text, which omits reference to the term “suggestion of death.”
2
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138 F.3d at 470-71; see also Fed. R. Civ. P. 25, Advisory
Committee Notes: 1963 Amend. (“The motion may not be made later
than 90 days after the service of the statement [of death]
unless the period is extended pursuant to Rule 6(b).”).
On July 17, the plaintiff served, via electronic filing
system, a letter motion seeking to adjourn the July 24 initial
pretrial conference in light of Ornette Coleman’s death.
letter began by memorializing Ornette Coleman’s death.
That
This
letter is sufficiently formal notice to the Court and defendants
of Ornette Coleman’s June 11, 2015 death to qualify as the
statement of death triggering Rule 25’s 90-day substitution
period.
Rule 25(a)(1) does not require that such statements include
magic words or come in specific forms.
That the letter motion
was not labeled a “suggestion of death” or “statement of death”
or because it failed to use Official Form 4 does not render the
notice of death therein impermissibly informal or inoperative.
Nor does the fact that the statement of death accompanied a
request for adjournment nullify the statement of death; indeed,
the death is what prompted the request for adjournment in the
first place.
The letter motion was not, as the plaintiff argues here, a
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“[m]ere reference to a party's death in court proceedings or
pleadings,” Grandbouche, 913 F.2d at 836; rather, it was a
“statement noting the death” of Ornette Coleman, properly served
by electronic means, consistent with the terms of Rule 25(a).
Accordingly, the plaintiff was required to make a motion to
substitute within the next 90 days. 3
The plaintiff has filed a Rule 6(b) motion seeking to
retroactively extend the 90-day deadline.
granted.
That motion is
Rule 6(b) provides that a court may, “for good cause,”
extend a deadline “on motion made after the time has expired if
the party failed to act because of excusable neglect.”
Civ. P. 6(b).
Fed. R.
In Pioneer Investment Services Co. v. Brunswick
Associates Limited Partnership, 507 U.S. 380 (1993),
the Supreme Court set forth four factors to be
considered in connection with an assertion of
excusable neglect as justification for a missed
Plaintiff makes several additional arguments regarding the July
17 letter motion. Two arguments -- that the purported statement
of death was improperly served by the decedent’s attorney and
that the statement wrongly failed to identify the formal
successor to the decedent’s interests -- have been rejected by
the Second Circuit. Unicorn Tales, 138 F.3d at 469-70.
Plaintiff’s third argument also lacks merit. He contends that
the statement of death was invalid because it was not served on
him individually, as non-party successor to Ornette Coleman’s
estate. But, the letter was filed by Denardo Coleman’s counsel,
who represents the plaintiff in his capacity as Ornette
Coleman’s legal guardian. No service on the plaintiff in his
individual capacity was necessary.
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judicial deadline: (1) the danger of prejudice to the
party opposing the extension; (2) the length of the
delay and its potential impact on judicial
proceedings; (3) the reason for the delay, including
whether it was within the reasonable control of the
party seeking the extension; and (4) whether the party
seeking the extension acted in good faith.
In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d 113, 129 (2d
Cir. 2011) (citation omitted).
Courts in this Circuit “focus[]
closely on the third Pioneer factor: the reason for the delay.”
Padilla v. Maersk Line, Ltd., 721 F.3d 77, 83 (2d Cir. 2013).
“[T]he ultimate determination depends upon a careful review of
all relevant circumstances.”
(citation omitted).
In re Am. Exp., 672 F.3d at 129
“Excusable neglect may be found where the
relevant circumstances reveal inadvertent delays, mistakes, or
carelessness.”
In re Painewebber Ltd. Partnerships Litig., 147
F.3d 132, 135 (2d Cir. 1998).
The Pioneer factors weigh in favor of permitting an
extension.
The defendants will suffer no prejudice if the suit
is permitted to proceed by substitution of the plaintiff as a
guardian authorized by the December 2, 2015 New York Supreme
Court order for the plaintiff as a guardian without such
authorization.
Indeed, the prejudice and delay would be greater
under alternative dispositions, such as dismissal of the
plaintiff’s claims without prejudice to renewal.
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There is no
evidence the plaintiff has acted in bad faith: indeed, he
notified the Court and the defendants of his intention to move
to substitute, and has been taking steps to do so since July.
Most importantly, a review of the relevant circumstances
demonstrates that the plaintiff had “a reasonable basis for
noncompliance.”
In re Am. Exp., 672 F.3d at 129.
The plaintiff
timely complied with the Court’s request for a status update on
substitution, and notified the Court on November 12 that he
expected to receive authorization from the Surrogate’s Court in
December.
The plaintiff was first apprised of defendants’
intention to make an argument based on Rule 25 at a
teleconference on unrelated matters on November 17, over a month
after the 90-day deadline elapsed.
Under these circumstances,
the plaintiff has made an adequate showing of excusable neglect.
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CONCLUSION
The plaintiff’s motion for an extension of time to file a
Rule 25 motion pursuant to Rule 6(b) is granted.
Defendants’
October 22, 2015 motion to dismiss is denied insofar as it is
predicated on the plaintiff’s failure to timely substitute.
Court reserves decision regarding the other issues raised in
defendants’ motion to dismiss.
Dated:
New York, New York
December 18, 2015
__________________________________
DENISE COTE
United States District Judge
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