Aleem v. Experience Hendrix, L.L.C. et al

Filing 80

OPINION AND ORDER. For the foregoing reasons, the Defendant's motions for summary judgment is GRANTED as to the Second Amended Complaint and the Counterclaim for Declaratory Judgment. The Clerk of Court is respectfully directed to terminate the motions, Docs. 61, 77, and close the case. It is SO ORDERED. re: 61 MOTION for Summary Judgment filed by Experience Hendrix, L.L.C., 77 LETTER MOTION for Oral Argument on Defendant's Motion for Summary Judgment addressed to Judge Edgardo Ramos from Dorothy M. Weber dated 11/29/2018 filed by Experience Hendrix, L.L.C. (Signed by Judge Edgardo Ramos on 9/26/2019) (rjm) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TAHARQA ALEEM and TAJIDDIN ALEEM,
Plaintiffs,

- against -

OPINION AND ORDER
16 Civ. 9206 (ER)

EXPERIENCE HENDRIX, L.L.C. and ROCK &
ROLL HALL OF FAME & MUSIC, INC.,
Defendants.
Ramos, D.J.:
Jimi Hendrix, the world-renowned guitarist, gave two of his bandmates each a
guitar soon before his death in 1970. After his death, Hendrix’s estate purchased the
guitars back from the bandmates for $30,000. Now, Plaintiffs — one of the bandmates
and the other’s brother — sue under a theory of promissory estoppel to enforce an alleged
oral promise that allowed them to buy back the guitars at any time after giving notice and
returning the $30,000 they received. The defendants now move for summary judgment.
Because the Court finds as a matter of law that any injury suffered by Plaintiffs is not
unconscionable, it GRANTS the defendants’ motion for summary judgment of Plaintiffs’
Second Amended Complaint. It also GRANTS the defendants’ motion for summary
judgment of its Counterclaim for Declaratory Judgment.
I.

BACKGROUND
During his short career, Jimi Hendrix entertained audiences as a “world-renowned

musician and guitarist.” Resp. to Def.’s Rule 56.1 Statement of Purportedly Undisputed
Material Facts (“Pls.’ 56.1 Resp.”) ¶ 17, Doc. 70. Prior to his death, Hendrix gifted two

guitars to the late Tunde Ra Aleem and Plaintiff Taharqa Aleem, 1 twins who were also
known as the “Ghetto Fighters.” Id. ¶¶ 1, 22.
One of the guitars is a Mosrite Joe Maphris brand doubleneck guitar, which
Hendrix used to record “Spanish Castle Magic” for the album Axis: Bold as Love. Id.
¶¶ 22; Decl. of Dorothy M. Weber in Support of Def.’s Mot. for Summ. J. (“Weber
Decl.”) Ex. X at ECF p. 34, Doc. 63. Hendrix used the other, an Acoustic brand Black
Widow electric guitar, in his recording of “Mojo Man,” a song released in Hendrix’s
posthumous 2013 album People, Hell, and Angels and for which the Aleem twins were
vocalists. Pls.’ 56.1 Resps. ¶ 22; Weber Decl., Ex. X at ECF p. 35. Both guitars are
currently displayed in the Rock and Roll Hall of Fame in Cleveland, Ohio as part of the
collection of the defendant, Experience Hendrix, LLC. 2 Pls.’ 56.1 Resps. ¶ 32, 33.
Experience Hendrix, formed alongside Authentic Hendrix, LLC by Jimi
Hendrix’s father Al Hendrix, holds, manages, and licenses the rights related to Jimi, who
died in 1970. Id. ¶ 17, 18. In addition, Experience Hendrix acquires personal items
owned by Jimi for its own collection and loans those items to museums and other
organizations for display. Id. ¶¶ 19–21. Jimi’s sister, Janie Hendrix, currently serves as
Experience’s president and CEO. Decl. of Janie Hendrix in Support of Def.’s Mot. for
Summ. J. (“Hendrix Decl.”) ¶ 1, Doc. 64.

1

Their brother, Tajiddin, is also a plaintiff, claiming he is the successor in interest to Tunde Ra. Second
Amended Compl. ¶ 9 n.1.
2

Rock & Roll Hall of Fame and Music, Inc., the owner and operator of the Rock & Roll Hall of Fame, is
named as a nominal defendant and represented by counsel for Experience.

2

A. The Initial Sale of the Guitars
In 1995, the Aleem twins chose to place at least one of the guitars up for public
auction in response to an unexpected personal expense. Pls.’ 56.1 Resps. ¶ 23; Decl. of
Taharqa Aleem in Opp’n (“Taharqa Decl.”) ¶ 18, Doc. 79. Experience discovered the
auction and offered to acquire possession of the guitars for $30,000. Hendrix Decl. ¶¶ 6,
8. The twins accepted, and Experience took possession of the guitars in late 1995 or
1996. Id.
Taharqa Aleem avers, however, that the deal was more than a simple purchase.
He claims that Experience orally gave the twins the option of buying back the guitars at
any time so long as they gave notice and returned the $30,000. Taharqa Decl. ¶ 8.
Experience denies that it ever made such a promise, saying that it would have never given
the twins a $30,000, zero-interest loan secured by the guitars — essentially what the
Plaintiffs’ version of the deal amounts to. Hendrix Decl. ¶ 7.
There was no writing memorializing the transaction. Pls.’ 56.1 Resps. ¶ 27. As
the twins wrote in a 2014 account of the deal, “with no written contracts, or anything
other than [their] sacred words to each other . . . [the Ghetto Fighters and Experience]
went [their] separate ways.” Taharqa Dec. Ex. 2 at 7.
B. Jack Cassin and the 2001 Negotiations
In 2001, a man named Jack Cassin reached out to Experience allegedly on behalf
of Taharqa and Tunde Ra, seeking to negotiate a repurchase of the guitars. Weber Decl.
Ex. P (“Cassin Decl.”) ¶ 3. After phone conversations with an Experience representative,
Cassin reached a tentative agreement detailing a transaction whereby the twins would pay
Experience $80,000 and hand over master recordings of the Ghetto Fighters and Jimi
Hendrix in exchange for Experience returning the guitars. Id. at ¶¶ 4, 6; Weber Decl. Ex.
3

Q § 3. The deal ultimately never went through, with Cassin averring that the twins could
not pull together the required $80,000. Cassin Decl. ¶ 6. Neither Cassin, the Experience
representatives, nor the draft agreements mention the 1995 oral promise to buy back the
guitars for the price of $30,000.
Taharqa denies authorizing Cassin to engage in these negotiations. Taharqa Decl.
¶ 21, 22. In fact, Plaintiffs deny having any meaningful relationship with Cassin at all.
In various court filings and discovery documents, Plaintiffs have described Cassin as
“simply a friend,” id. ¶ 20, Taharqa’s landlord, id., “never a manager for the Ghetto
Fighters,” id. ¶ 21, a “random stranger,” Pls.’ Response to Hendrix Defs.’ Pre-Mot.
Conference Letter at 3 (filed Feb. 3, 2017), Doc. 15, and “some random gentleman who
never had authority to act on the Plaintiffs’ behalf,” id. Plaintiffs admit that they have
discussed the present lawsuit and the guitars with Cassin several times over the years.
Weber Decl. Ex. W (“Pls.’ Interrogatory Resps.”) at 3.
Cassin is also a party to a 2014 “Settlement Agreement” with the twins. Decl. of
Dorothy M. Weber in Reply and in Further Support of Def.’s Mot. for Summ. J. Ex. A,
Doc. 63. The agreement indicates that Cassin and the twins had conducted business
together for thirty-five years, had worked together on “music publishing, record
production, independent record label operations, literary, intellectual property
exploitation and other matters related to the careers” of the Ghetto Fighters. Id. §§ 2(a),
2(c). The deal terminated the business relationship between Cassin and the twins, with
the twins paying Cassin $75,000 in return for the surrender of several domain names, his
agreement to not criticize the twins in writing or verbally, and his agreement to not hold
himself out as having the authority to represent the twins in any capacity. Id. §§ 5(A),

4

5(B). Cassin himself avers that he was a “Business Partner and Manager” of the Ghetto
Fighters for about twenty-four years. Cassin Decl. ¶ 2.
C. The 2006 Seattle Meeting
Five years after the negotiations between Cassin and Experience, in January 2006,
the Aleem twins met with Janie Hendrix in Seattle. Pls.’ 56.1 Resps. ¶ 43. In addition to
the Aleems and Hendrix, Linda Anderson, an Experience employee, attended and took
notes, which she memorialized in a memorandum. Id. ¶ 44; Weber Decl. Ex. R
(“Anderson Decl.”) ¶ 4; Weber Decl. Ex. S (“Anderson Memo”).
The parties agree — and the memorandum reflects — that the twins and Hendrix
discussed matters regarding several previous interactions between Experience and the
twins. See Anderson Memo at 2. The memorandum also indicates that the twins raised
again the possibility of purchasing back the guitars from Experience, referring to a 1998
conversation with Wright, Hendrix’s husband, and that Hendrix indicated that she would
take this request to Experience’s board of directors. See id. at 1. Although Hendrix and
Anderson agree with this characterization of the meeting, Hendrix Decl. ¶ 14; Anderson
Decl. ¶¶ 5, 6, Taharqa flatly denies there was any discussion of the guitars at all, Taharqa
Decl. ¶ 26. Neither party has presented any indication that Hendrix discussed the request
with Experience’s board or otherwise followed up with the twins.
D. The Present Lawsuit
Counsel for Plaintiffs sent a demand letter to Experience in September 2016,
citing the alleged 1995 oral promise and asking that the guitars be returned in exchange
for $30,000. Weber Decl. Ex. Z at ECF p. 5. After Experience did not reply, Plaintiffs
filed suit in November 2016 in New York Supreme Court, alleging causes of action for
replevin, conversion, breach of contract, promissory estoppel, and slander of title. Notice
5

of Removal, Doc. 1. Experience properly removed the case to the Southern District of
New York that same month. Id.
Defendants filed a motion to dismiss in February 2017. Doc. 18. This Court
granted in part and denied in part that motion in an opinion and order on July 17, 2017.
See Aleem v. Experience Hendrix, L.L.C., No. 16 Civ. 9206 (ER), 2017 WL 3105870
(S.D.N.Y. July 17, 2017). That opinion — finding that the enforcement of any
contractual agreement was barred by the statute of frauds, id. at *5 — dismissed all
claims except for the promissory estoppel claim, dismissed Tajiddin as a plaintiff for lack
of standing, and granted Plaintiffs leave to replead their claims for replevin and
conversion, as well as Tajiddin’s standing. Id. at *8.
Plaintiffs took advantage of that leave and filed a First Amended Complaint in
August 2017, Doc. 29, followed by a Second Amended Complaint in November 2017
that limited their claims to one based on promissory estoppel and that properly pleaded
Tajiddin’s standing. Doc. 44 (“SAC”). Experience answered the Second Amended
Complaint one month later, also raising a counterclaim asking for a declaratory judgment
that “Experience is the sole and exclusive owner of the Guitars and that Plaintiffs have no
ownership or rights in the Guitars.” Doc. 45 at 11 (“Answer”). In October 2018,
Experience filed a motion for summary judgment dismissing the Second Amended
Complaint in its entirety and granting its counterclaim for declaratory judgment. Doc.
61.
II.

STANDARD
Summary judgment is appropriate where “the movant shows that there is no

genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “An issue of fact is

6

‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 467
(S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d
Cir. 2009)). A fact is “material” if it “might affect the outcome of the suit under the
governing law.” Id. (internal quotation marks omitted). The party moving for summary
judgment is first responsible for demonstrating the absence of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party
meets its burden, “the nonmoving party must come forward with admissible evidence
sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.”
Saenger v. Montefiore Med. Ctr., 706 F. Supp. 2d 494, 504 (S.D.N.Y. 2010) (internal
quotation marks omitted) (citing Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d
Cir. 2008)). But “[w]hen the burden of proof at trial would fall on the nonmoving party,
it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of
fact on an essential element of the nonmovant’s claim.” Jaramillo, 536 F.3d at 145.
III.

DISCUSSION
Experience moves for summary judgment on two grounds: First, it argues that the

six-year statute of limitations has expired, and, second, it argues that the Plaintiffs’
promissory estoppel claim fails as a matter of law. The Court finds that there is a genuine
dispute of material fact in regard to the first ground, but it finds there is no genuine issue
for the second, necessitating dismissal of Plaintiffs’ lawsuit.

7

A. The Statute of Limitations
Although there is no express provision for a statute of limitations in promissory
estoppel cases, New York law 3 provides that where no limitations period is specifically
prescribed, an action must be commenced within six years. N.Y. C.P.L.R. § 213(1)
(McKinney 2019). The statute of limitation period is generally “computed from the time
the cause of action accrued.” Id. § 203(a); Hahn Auto. Warehouse, Inc. v. Am. Zurich
Ins. Co., 967 N.E.2d 1187, 1190 (N.Y. 2012) (An action accrues “when all of the facts
necessary to the cause of action have occurred so that the party would be entitled to
obtain relief in court.”) (internal citations omitted). Promissory estoppel actions
generally accrue at the time of the breach of the promise. Schmidt v. McKay, 555 F.2d
30, 36 (2d Cir. 1977); cf. Ely-Cruikshank Co. v. Bank of Montreal, 615 N.E.2d 985, 986
(N.Y. 1993) (“In New York, a breach of contract cause of action accrues at the time of
the breach”).
In this case, the alleged 1995 oral promise at issue is most clearly reflected in the
declaration of Taharqa Aleem:
[U]pon notice and return of the $30,000 (which had no time restrictions on when such notice could be made), Experience would
deliver the Guitars back to us.
Taharqa Decl. ¶ 8 (citing SAC ¶ 22). Put another way, Experience was allegedly
promising that if the twins gave notice of wanting the guitars back under the 1995 oral
promise and if the twins returned the $30,000, then Experience would return the guitars.
Therefore, to break that promise, Experience would have to refuse to return the guitars

3

Because the parties have briefed this matter citing New York law, the Court deems that the parties have
impliedly consented to its application. See Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir.
2000).

8

after the twins gave notice that they wanted the guitars returned and furnished the
$30,000.
Experience argues that there are two times when the twins triggered the statute of
limitations: the 2001 negotiations led by Cassin and the 2006 meeting between the twins
and Janie Hendrix. Plaintiffs aver that the twins did not authorize the 2001 negotiations,
that the 2006 meeting did not discuss the guitars, and that, in any event, these interactions
did not trigger accrual of the claims at issue today. The Court finds that the 2001
negotiations, even if they occurred with the twins’ approval, did not constitute accrual of
the claim. It also finds that there is a genuine dispute of material fact over the specific
details of the 2006 meeting and related conversations.
Experience urges the Court to view the 2001 negotiations as the first time it broke
the alleged promise because the twins — through their agent — put Experience on notice
that they wanted the guitars back. But there are three issues with Experience’s
interpretation of the event, assuming for the moment that Cassin was operating under the
Ghetto Fighters’ authority. First, any notice given of the twins wanting the guitars back
was made generally, not pursuant to the alleged 1995 promise — indeed, the agreement
Cassin negotiated does not mention any existing buyback promise. See Weber Decl. Ex.
Q. Second, Cassin did not offer Experience $30,000 on the twins’ behalf; rather, he
offered Experience $80,000 and the provision of several recordings featuring Jimi
Hendrix. Id. And, third, the twins never actually proffered the money because,
according to Cassin, they “did not have the $80,000.” Cassin Decl. ¶ 6. Put simply,
Cassin’s negotiations consisted of an entirely separate and unconsummated deal unrelated

9

to the alleged 1995 oral promise; it was impossible for Experience to break its alleged
promise when the twins’ agent never actually triggered it.
Experience seeks to frame the 2006 meeting, too, as a trigger of the statute of
limitations. According to Anderson’s memorandum memorializing the 2006 meeting,
Taharqa and Tunde Ra began the meeting by requesting to buy back the guitars,
indicating that they had recently come into money. See Anderson Memo at 1.
Anderson’s memorandum indicates that the twins had decided to remove the guitars from
auction because the deal had a “condition that they be given the opportunity to buy them
back someday.” Id. The memorandum continues: “[The twins] claimed to have had a
conversation with [Hendrix’s husband] Troy Wright regarding this matter in 1998, and
that he had agreed to the alleged terms.” Id. They claimed Wright was acting as an agent
of Experience in 1998, even though he was not an employee of Experience as of 2006.
Id. According to Anderson’s document, Hendrix offered to take the request to
Experience’s board of directors, and the twins said they were satisfied with her efforts,
regardless of whether the board agreed to the request. Id.
The Plaintiffs do admit to having “a brief in person conversation . . . in New
York City” with Wright “to facilitate the terms of the promises and understanding that the
Aleems set forth in their Second Amended Complaint.” Pls.’ Interrogatory Resp. at 2.
But, as to the 2006 conversation, Taharqa denies that they mentioned the guitars at all.
Taharqa Decl. ¶ 26.
In order to find that this conversations triggered the statute of limitations, the
Court would have to find there is no genuine dispute that: (1) these conversations
actually happened; (2) that the twins were referring to the terms of the alleged oral

10

promise of 1995; and (3) that the twins had proffered $30,000 with the expectation that
the guitars would be promptly returned. Putting aside the question of whether Taharqa’s
denial is sufficient to create a dispute over the contents of the conversations, the
memorandum — in addition to the declarations of Anderson and Hendrix — is simply
too thin of a record to make the latter two findings as a matter of law. Therefore, this
Court cannot grant Experience’s motion for summary judgment on the statute of
limitations grounds.
B. The Promissory Estoppel Claim
Promissory estoppel requires a plaintiff to prove three elements: “(1) a clear and
unambiguous promise, (2) reasonable and foreseeable reliance by the promisee, and (3)
unconscionable injury to the relying party as a result of the reliance.” Marvin Inc. v.
Albstein, 386 F. Supp. 2d 247, 253–54 (S.D.N.Y. 2005) (quoting Readco, Inc. v. Marine
Midland Bank, 81 F.3d 295, 301 (2d Cir. 1996)). “Each element must be present before a
promissory estoppel claim can be sustained.” In re Gulf Oil/Cities Serv. Tender Offer
Litig., 725 F. Supp. 712, 734 (S.D.N.Y. 1989) (citing Esquire Radio & Elec. v.
Montgomery Ward, 804 F.2d 787, 793 (2d Cir. 1986)). Where, as here, a contract is
barred by the Statute of Frauds, see Aleem, 2017 WL 3105870, at *5, New York law adds
a heightened injury element requiring plaintiff to demonstrate “unconscionable” injury.
See In re Estate of Hennel, 80 N.E.3d 1017, 1022 (N.Y. 2017).
A Clear and Unambiguous Promise
The alleged 1995 oral promise is clear and unambiguous; according to Taharqa,
Janie Hendrix promised the twins that Experience would return the guitars if the men
indicated they wished to regain possession of the guitars and proffered $30,000. See
Taharqa Decl. ¶ 8.
11

The larger question is whether the promise was made at all. On the one hand,
Taharqa avers that Janie Hendrix made this promise to him and his brother. Id. On the
other, Hendrix avers, “We would never have paid money for the Guitars as a ‘license.’
We did not loan the Aleems that money.” Hendrix Dec. ¶ 7.
“[C]ourts reviewing summary judgment motions ‘generally should not weigh
evidence or assess the credibility of witnesses.’” Bentley v. AutoZoners LLC, 935 F.3d
76, 86 (2d Cir. 2019) (quoting Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d
98, 104 (2d Cir. 2011)). “Nevertheless, ‘in the rare circumstance where the plaintiff
relies almost exclusively on [her] own testimony, much of which is contradictory and
incomplete,’ to establish a triable issue of fact, it may well ‘be impossible’ for the court
‘to determine whether the jury could reasonably find for the plaintiff, and thus whether
there are any ‘genuine’ issues of material fact, without making some assessment of the
plaintiff’s account.’” Bentley, 935 F.3d at 86 (alteration in original) (quoting Jeffreys v.
City of New York, 426 F.3d 549, 554 (2d Cir. 2005)). In order to conclude that the
testimony of a party cannot raise a genuine issue of material fact, the court must find such
contradictions, “inescapable and unequivocal.” Bentley, 935 F.3d at 86 (internal
quotation removed).
Experience urges the Court to apply the exception of Jeffreys and Rojas to the
declaration of Taharqa due to, in particular, the steady erosion of his story regarding the
twins’ relationship to Cassin during the course of this litigation. But even if the Court
were to do so — and thereby find that Cassin was negotiating on behalf of the twins to
repurchase the guitar — the Court would be unable to find that there is no genuine

12

dispute of material fact as to whether Experience made a clear and unambiguous promise
to the Ghetto Fighters in 1995.
As an initial matter, Taharqa’s declaration that Hendrix made the 1995 promise is
not contradicted by any of his own testimony. Compare Taharqa Decl. ¶ 8 (“[W]e would
be able [to] license the Guitars to defendant Experience for a one-time sum of
$30,000 . . . .”) with SAC. ¶ 22 (“The pertinent terms of the Licensing Agreement were
that . . . the Aleem Brothers would license the Guitars to defendant Experience for a onetime sum of $30,000.”) (affirmed by Decl. of Taharqa Aleem ¶ 2, Weber Decl. Ex. N).
And any contradictions raised by the circumstances or substance of the 2001 negotiations
or the 2006 meeting have plausible, albeit unlikely, explanations: Taharqa and Tunde Ra
could have forgotten about the promise in 2001 and 2006, for instance, or they could
have chosen for some strategic reason not to trigger the 1995 promise during either
interaction with Experience. 4 A reasonable jury could make one of those inferences on
this record, and therefore the Court is bound to not find in Experience’s favor on this
ground. See Bentley, 2019 WL 3884248, at *6 (“[A] court should not disregard
testimony if there is a plausible explanation for its contradiction by other evidence.”).
Justifiable Reliance
The Court finds that there is a genuine dispute of material fact over whether the
twins justifiably and foreseeably relied on Experience’s promise, assuming the promise
was made. The record shows that the twins reasonably relied upon Experience’s promise

4

Although this is made even more unlikely by a 2014 email from the twins’ then-attorney Kendall Minter.
See Weber Decl. Ex. Y. While inquiring about matters related to a license for Experience Hendrix to use a
recording of Mojo Man in a recently released album, Minter asked for “a fully signed copy of the contract
pursuant to which the Aleems sold to the Hendrix Estate” the guitars. Id. at ECF p. 3. Regardless, this
document does not compel the Court to find for Experience as a matter of law on this point.

13

by taking the guitars off the auction block and giving them to Experience in exchange for
$30,000, soon after Experience made its promise. See Taharqa Decl. ¶ 10. But for
Experience’s promise, the Ghetto Fighters would have sold the guitars or chosen to keep
them.
Unconscionable Injury
“To invoke the power that equity possesses to trump the Statute of Frauds,
[Plaintiffs] must demonstrate ‘unconscionable’ injury, i.e., injury beyond that which
flows naturally ([that is,] expectation damages) from the non-performance of the
unenforceable agreement.” Merex A.G. v. Fairchild Western Systems, Inc., 29 F. 3d 821,
826 (2d Cir. 1994). For example, lost sales, opportunities, and clients, even when
significant, do not give rise to an unconscionable injury. See Darby Trading Inc. v. Shell
Int’l Trading & Shipping Co., 568 F. Supp. 2d 329, 342 (S.D.N.Y. 2008). Nor does the
need to pay an “exceptionally high” cover price to make up for the broken promise
suffice. See ABA Refinery Corp. v. Republic Metals Refining Corp., 15 Civ. 8731
(GHW), 2017 WL 4481170, at *6 (S.D.N.Y. 2017).
On its order partially granting Experience’s motion to dismiss, this Court ruled
that Plaintiffs had “establish[ed] a claim for promissory estoppel . . . , but just barely.”
Aleem, 2017 WL 3105870, at *6. This Court, quoting the Plaintiffs’ complaint,
characterized the injury as the “conversion of the two historic, iconic and extremely
valuable items for ‘a mere $30,000.’” Id. After the benefit of discovery, this injury,
though well-plead, is insufficient to establish unconscionability.
First, Plaintiffs have offered no evidence for the value of the guitars. Although
the guitars were initially sold for $30,000, Plaintiffs have offered no documentary

14

evidence regarding how much the guitars would sell for on the open market today and
whether that amount is significantly more than $30,000. Although Taharqa avers that the
twins could have received as much as $200,000 for a single guitar at auction, Taharqa
Decl. ¶ 8, and the Second Amended Complaint alleges the guitars are now worth at least
$1 million each, SAC ¶ 13 n.2 (affirmed by Decl. of Taharqa Aleem ¶ 2, Weber Decl. Ex.
N), the Plaintiffs provide no documentation from any appraiser indicating that estimated
value. See Weber Decl. Ex. CC (email from Christie’s representative indicating that the
auction house has no record of the original attempt to sell the guitars). Without some
admissible appraisal value, the Court cannot use Taharqa’s declarations alone to create a
genuine dispute of material fact on this point. See Fed. R. Civ. P. 56(c)(2) (“A party may
object that the material cited to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.”). Without more, the monetary injury is precisely
what would have flowed naturally from the enforcement of the promise: $30,000 —
hardly unconscionable.
Second, Plaintiffs have offered no evidence that the guitars are “historic,”
“iconic,” or otherwise have nonmonetary value sufficient to create an unconscionable
injury from their absence from Plaintiffs’ possession. Although the record indicates that
the guitars were indeed used by Jimi Hendrix for the recording of specific songs, see
Weber Decl., Ex. X at ECF pp. 34, 35, the record does not indicate the import of those
songs, nor does it indicate the import of the guitars to Jimi Hendrix or his career. 5

5

Plaintiffs do provide a single magazine article that calls the guitars “two of the stranger guitars that Jimi
Hendrix ever owned.” Taharqa Decl. Ex 1. But they do not provide any information about the publication,
the author, or the basis for the author’s knowledge. The Court does not consider it because it would be
inadmissible at trial. See Fed. R. Civ. P. 56(c)(2).

15

Indeed, the Second Amended Complaint alleges that Hendrix often gave guitars to his
bandmates, further casting doubt on the iconic status of these particular guitars. See
SAC ¶ 9.
In any event, courts that have faced a broken promise to sell a valuable artifact or
piece of art have all declined to find the unique nature of the item as creating
unconscionable injury. See, e.g., Marvin Inc. v. Albstein, 386 F. Supp. 2d 247, 248–49,
254 (S.D.N.Y. 2005) (finding loss of “superior work from a highly desired period in a
well-known artist’s oeuvre” not unconscionable (internal quotations removed));
Hoffmann v. Boone, 708 F. Supp. 78, 79, 82 (S.D.N.Y. 1989) (finding loss of work of art
valued at about $120,000 not unconscionable). As Judge Pauley of this District wrote
when deciding that a broken promise to sell three $1 million paintings was not
unconscionable: “The standard of ‘unconscionability’ cannot be judged solely based on
Plaintiff’s personal tastes.” Robins v. Zwirner, 713 F. Supp. 2d 367, 377 (S.D.N.Y. 2010).
Third, finding in Plaintiffs favor on this point would go against the counsel of the
Second Circuit and the New York Court of Appeals that a finding of unconscionable
injury should be “limited” and “rare.” See Philo Smith & Co. v. USLIFE Corp., 554 F.2d
34, 36 (2d Cir. 1977); In re Estate of Hennel, 80 N.E.3d 1017, 1024 (N.Y. 2017). “The
strongly held public policy reflected in New York’s Statute of Frauds would be severely
undermined if a party could be estopped from asserting it every time a court found that
some unfairness would otherwise result.” Hennel, 80 N.E.3d at 1023 (quoting Philo
Smith, 554 F.2d at 36). Promissory estoppel is meant to be a backstop, yes, preventing
manifest injustice from occurring due to rigid rules of contract law. See Hennel, 80 N.E.
3d at 1022 (“[E]quity will not permit the statute of frauds to be used as an instrument of

16

fraud.” (internal quotation omitted)). But if injuries such as the one claimed here were
viewed as unconscionable, then any purchaser of a pop-culture artifact would be
vulnerable to the risks of trial solely because the person who sold them the artifact had
regrets.
“In short, [Plaintiffs’] allege that they did not receive the full benefit of their oral
bargain. If these facts were sufficient to prevent application of the statute of frauds, the
statute of frauds would be ‘severely undermined.’” Id. at 1024 (quoting Philo Smith, 554
F.2d at 36). Accordingly, the Court finds that the Plaintiffs have not created a genuine
dispute of material fact regarding whether they suffered an unconscionable injury as a
result of Experience’s actions. The Court GRANTS Experience summary judgment on
this ground.
C. Declaratory Judgment
In addition to its motion for summary judgment of Plaintiff’s Second Amended
Complaint, Experience moves for summary judgment on its Counterclaim for
Declaratory Judgment. Plaintiffs did not address this aspect of the motion at all in their
opposition papers. Because the Court has at this time dismissed all claims that Plaintiffs
have brought to support their rights in the guitars, the Court grants Experience’s motion
and makes the following declaratory judgment under 28 U.S.C. § 2201:
Plaintiffs have no ownership or rights in the Mosrite Joe Maphris
brand doubleneck guitar and Acoustic brand Black Widow electric
guitar they sold to Experience Hendrix, LLC in 1995 or 1996.
The Court declines to rule that Experience Hendrix, LLC is the “sole and exclusive
owner of the Guitars,” Answer at 11, as the controversy before it is only between these
plaintiffs and defendants.

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