Coleman v. System Dialing LLC et al

Filing 76

MEMORANDUM OPINION AND ORDER: Plaintiff Denardo Coleman (Coleman) alleges that the defendants sold unauthorized recordings of performances by his late father and famed jazz musician, Ornette Coleman. The defendants request that this case be dismisse d with prejudice on the ground that Coleman has failed to prosecute his claims against them. The defendants motion is granted......This action is dismissed with prejudice. The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 7/11/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
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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15cv3868 (DLC)
MEMORANDUM OPINION
& ORDER

APPEARANCES:
For the plaintiff:
Brett Van Benthysen
Reitler Kailas & Rosenblatt, LLC
885 Third Avenue, 20th Floor
New York, NY 10022
For the defendants:
Justin S. Stern
Frigon Maher & Stern LLP
1271 Avenue of the Americas, Suite 4300
New York, New York 10020
DENISE COTE, District Judge:
Plaintiff Denardo Coleman (“Coleman”) alleges that the
defendants sold unauthorized recordings of performances by his
late father and famed jazz musician, Ornette Coleman.

The

defendants request that this case be dismissed with prejudice on
the ground that Coleman has failed to prosecute his claims
against them.

The defendants’ motion is granted.

BACKGROUND
The history of this litigation is set out in three prior
Opinions, which are incorporated by reference and with which
familiarity is assumed.

Coleman v. Sys. Dialing LLC, 15cv3868

(DLC), 2016 WL 3387748 (S.D.N.Y. June 17, 2016) (“Coleman III”);
Coleman v. Sys. Dialing LLC, 15cv3868 (DLC), 2016 WL 1169518
(S.D.N.Y. Mar. 22, 2016) (“Coleman II”); Coleman v. Sys. Dialing
LLC, 15cv3868 (DLC), 2015 WL 9275684 (S.D.N.Y. Dec. 18, 2015)
(“Coleman I”).

This Opinion summarizes only those facts that

are relevant to the defendants’ request to dismiss this case
with prejudice.
Coleman has acted as Ornette Coleman’s legal guardian since
2013, and initiated this action in that capacity in May 2015.
Ornette Coleman died in June 2015.

On July 17, Coleman notified

the Court of Ornette Coleman’s death and indicated that he would
substitute a new plaintiff “when certain estate matters have
been taken care of.”

Substitution required that Coleman apply

to the New York Surrogate’s Court for appointment of a
representative of Ornette Coleman’s estate.
conference was held on July 24.

An initial pretrial

On September 25, Coleman stated

that “[t]he necessary documents have been gathered and provided
to counsel for the estate, and are expected to be on file
shortly.”

2

The status of Coleman’s application in Surrogate’s Court to
become the representative of Ornette Coleman’s estate has
remained a principal focus of the litigation ever since the
summer of 2015.

On October 23, 2015, the defendants moved to

dismiss the complaint on the ground that Coleman’s claims were
subject to a written arbitration agreement.1

In doing so, they

argued that Coleman “has no standing to maintain this action”
because he was not the administrator of Ornette Coleman’s
estate.

In opposing the motion, Coleman represented that he

anticipated receiving letters of administration from the
Surrogate’s Court in December.

On December 18, the Court denied

the defendants’ motion to dismiss insofar as it was predicated
on Coleman’s failure to timely move to substitute a new
plaintiff.

Coleman I, 2015 WL 9275684, at *4.

The Court also

granted Coleman’s motion for a retroactive extension of time to
substitute based on his showing of excusable neglect.

Id.2

Following additional litigation, Coleman’s request to be
formally substituted as the plaintiff was granted in March 2016.
Coleman opposed the motion on two grounds: first, that Ornette
Coleman lacked the capacity to enter into the agreement, and
second, that Ornette Coleman never actually signed the
agreement.
1

In a separate Order, the Court held that whether a contract
containing an arbitration clause was formed is a question
properly adjudicated by the Court, but whether Ornette Coleman
lacked the capacity to enter into a contract containing an
arbitration clause is properly heard by an arbitrator.
2

3

Coleman II, 2016 WL 1169518, at *2.

At that time, the Court

ordered Coleman to submit an update on the status of his
application to be appointed as the representative of Ornette
Coleman’s estate by June 1.

The Court further instructed

Coleman to include in the update “a description of all
submissions he has made to the Surrogate’s Court, as well as any
action taken by the Surrogate’s Court.”

On June 1, Coleman

submitted an update that indicated he filed his application with
the Surrogate’s Court on May 27, 2016, and hoped that the
proceeding could be completed “in the next two to three months
depending on the Surrogate Court’s schedule.”
On May 13, the defendants filed a renewed motion to dismiss
or compel arbitration, arguing that all of Coleman’s claims are
governed by a binding arbitration agreement.

The Court’s June

17 Opinion on the motion ordered Coleman to submit his claims to
binding arbitration and stayed the action pending the outcome of
arbitration proceedings.

Coleman III, 2016 WL 3387748, at *5.

By separate Order of June 17, the Court further instructed
Coleman to submit a status letter by December 1, and instructed
that the defendants “may apply for further relief from this
Court” if Coleman did not commence arbitration proceedings
within thirty days.
Coleman did not commence arbitration proceedings within
thirty days.

On December 1, Coleman filed an update that stated
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he “has filed but not yet completed” his application to be
appointed administrator.

The letter further stated that Coleman

“anticipates that his application will be completed [in
December] and is hopeful that he will be duly appointed as a
representative of his father’s estate within 60 days, at which
time, [Coleman] is prepared to commence the arbitration.”

On

December 2, the Court instructed Coleman by endorsement to file
another status letter by June 1, 2017.

Coleman failed to comply

with the Court’s December 2 instruction.

On June 2, 2017, the

Court issued another order instructing Coleman to submit a
status letter by June 6.

The June 2 Order indicated that

failure to submit a letter by June 6 “may constitute grounds for
dismissal of the action or such other action as may be just in
the circumstances.”

Coleman submitted a letter on June 6

requesting a one-week extension to provide a “definitive” status
report.

With the Court’s permission, Coleman filed a status

report on June 12.

The June 12 status report indicated that

Coleman had not completed his application and that he had
retained new counsel to assist in doing so.

The Court ordered

Coleman to submit another status report by June 30.

On June 30,

Coleman submitted an update that stated, “[a]t this time, there
has been no additional progress” on the status of his
application.

It further requested that the action be dismissed

without prejudice if the Court was inclined towards dismissal.
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That day, the Court ordered any opposition to a dismissal of the
action without prejudice be filed by July 7.
On June 30, the defendants requested that the Court dismiss
the action with prejudice.3
request on July 5.

Coleman opposed the defendants’

Coleman’s July 5 letter acknowledged

“numerous delays” in completing his application to the
Surrogate’s Court and insisted, “progress is being made” on the
application.

The letter also conceded that Coleman cannot

provide a date certain by which his application to the
Surrogate’s Court will be finalized.4
DISCUSSION
Under the Federal Arbitration Act, 9 U.S.C. § 1 et seq.,
federal courts are required to stay, rather than dismiss, a case
when all claims are referred to arbitration and a stay is
requested.
2015).

Katz v. Cellco P’ship, 794 F.3d 341, 343 (2d Cir.

Rule 41 of the Federal Rules of Civil Procedure,

however, permits a court to dismiss an action sua sponte for
failure to prosecute.

Fed. R. Civ. P. 41(b).

When considering

The defendants’ June 30 letter also requests attorneys’ fees
“based both on the relevant contract language as well as [the]
Court’s inherent authority.” For the reasons stated in Coleman
III, the issue of attorney’s fees must be submitted to
arbitration.
3

The defendants filed an additional letter reiterating their
request that the case be dismissed with prejudice on July 7.
4

6

whether to dismiss a complaint pursuant to Rule 41(b), courts
must consider the following five factors:
(1) the duration of the plaintiff’s failure to comply
with the court order, (2) whether plaintiff was on
notice that failure to comply would result in
dismissal, (3) whether the defendants are likely to be
prejudiced by further delay in the proceedings, (4) a
balancing of the court’s interest in managing its
docket with the plaintiff’s interest in receiving a
fair chance to be heard, and (5) whether the judge has
adequately considered a sanction less drastic than
dismissal.
Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (citation
omitted).

Generally, no single factor is dispositive.

Id.

Dismissal must be preceded by particular procedural
prerequisites, including “notice of the sanctionable conduct,
the standard by which it will be assessed, and an opportunity to
be heard.”

Id. at 217 (citation omitted).

Although dismissal

is a “harsh remedy that should be utilized only in extreme
situations,” Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009)
(citation omitted), “the authority to invoke it for failure to
prosecute is vital to the efficient administration of judicial
affairs and provides meaningful access for other prospective
litigants to overcrowded courts.”

Lyell Theatre Corp. v. Loews

Corp., 682 F.2d 37, 42 (2d Cir. 1982).

A dismissal with

prejudice ordinarily occurs as a sanction for “dilatory tactics
during the course of litigation or for failure to follow a court
order.”

Lewis, 564 F.3d at 576.

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Dismissal with prejudice is appropriate in this case.
Coleman informed the Court of his intention to substitute a
plaintiff on July 17, 2015.

Two years later, he has still not

completed his application to the Surrogate’s Court to be
appointed as the representative of his father’s estate.

The

arbitration proceedings which were ordered in June 2016 have not
begun.
Coleman has been on notice that this pattern of delay might
result in dismissal.

The Court’s June 17, 2016 Order instructed

that the defendants may apply for further relief from the Court
if Coleman did not commence arbitration proceedings within
thirty days.

Coleman also failed to comply with the Court’s

December 2, 2016 instruction to submit a status letter by June
1, 2017.

After failing to comply with the Court’s instruction,

the Court ordered Coleman to submit a status letter by June 6,
2017 and indicated that failure to submit a letter by that date
“may constitute grounds for dismissal of the action or such
other action as may be just in the circumstances.”

These

requirements put Coleman on notice that his dilatory conduct was
sanctionable, and the defendants’ request to dismiss the action
with prejudice put Coleman on notice about the legal standards
that would be used to determine whether
dismissal with prejudice is appropriate in this case.

8

The defendants have been substantially prejudiced by
Coleman’s inaction.

Continued delay will only prejudice the

defendants further by requiring them to expend time and
resources on a case that is not being advanced.

The Court has

expended resources on this case and, in particular, on
preserving Coleman’s opportunity to be heard -- and its interest
in managing its docket favors dismissal.
Finally, there is nothing in the record to suggest that
Coleman would respond with any more diligence to additional
court orders or lesser sanctions.

This Court has repeatedly

admonished Coleman to complete his application in Surrogate’s
Court and commence arbitration proceedings.

Coleman’s updates

to date give the Court little reason to believe that ordering
additional status updates will be effective.

Even now, Coleman

cannot provide a date certain by which his application will be
complete.

Under these circumstances, dismissal with prejudice

is warranted.

If Coleman is appointed the estate’s

representative and elects to commence arbitration proceedings
against the defendants, the arbitrator will be able to decide
whether those claims are timely.

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CONCLUSION
This action is dismissed with prejudice.

The Clerk of

Court shall close the case.
Dated:

New York, New York
July 11, 2017
__________________________________
DENISE COTE
United States District Judge

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