Thomas v. Pizarro et al

Filing 57

ORDER granting 53 Letter Motion to Reopen Case. Granted. The standstill order is vacated. Motion to dismiss to be filed on or before June 25, 2024. SO ORDERED, ( Motions due by 6/25/2024.) (Signed by Judge Lewis A. Kaplan on 6/11/24) (yv)

Case 1:23-cv-10159-LAK Document 53 Filed 06/05/24 Page 1 of 4
KING, HOLMES, PATERNO

& SORIANO, LLP

ATTORNEYS AT LAW
1900 AVENUE OF THE STARS , TWENTY-FIFTH FLOOR
LOS ANGELES, CALIFORNIA 90067-4506
TELEPHONE [phone]
FACSIMILE [phone]

HOWARD E. KING
KEITH T. HOLMES
PETER T. PATERNO
LAURIE L. SORIANO
STEPHEN D. ROTHSCHILD
LESLIE E. FRANK
SCOTT MCDOWELL
JOSEPH M. CARLONE
JACQUELINE SABEC
MICHAEL REXFORD
MARJORIE GARCIA
SAMUEL G. ROSEME
JOHN G. SNOW
JACKSON S. TRUGMAN
JESSICA S. KIM
BRIGITTE L. ALANIS
TYLER G. GARBER
HAROLD C. PAPINEAU
CHRISTOPHER CH IANG
SAMUEL L. HIRSCH

SAN FRANCISCO OFFICE :
5 Ross Common
Ross, CA 94957
TELEPHONE : [phone]

WRITER'S DIRECT DIAL:

(3 l 0) 282-8986

June 5, 2024

MEMO ENDORSED

OF COUNSEL

HENRY GRADSTEIN
TOR BRAHAM
JEFFREY P. SILBERMAN

VIAECF
Hon. Lewis A. Kaplan
United States District Court Judge
United States Courthouse
50 Pearl St., Ctrm. 21B
New York, NY 10007
Re:

Terrence Thomas, etc. v. Tony D. Pizarro, et al., Case No. 23-cv-10159-LAK
Motion to Adiourn June 27, 20241 Settlement Conference (ECF Rule 13.1)

Your Honor:
Defendants Interscope Records ("Interscope"), a division of defendants Universal Music
Group, N.V. ("UMG") and UMG; Hulu, LLC, FX Networks, LLC, The Walt Disney Company,
and Fox Entertainment Group, LLC (the "FX Defendants"), and El Matador Productions, LLC
("El Matador") and relief defendant Universal Music Publishing, Inc. ("UMP") (collectively,
"defendants") move to reopen this case and lift the "standstill order" issued on April 16, 2024
[Dkt 49] and set a date two weeks from the Court's ruling on this motion for defendants to file a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). 1
1.

Introduction

This case is for copyright infringement and various related (and preempted) state law
claims. Plaintiff alleges that in 1993 he co-wrote and produced the Tupac Shakur song "Dear
1

Defendants also are filing a letter motion with the Magistrate Judge assigned to this case to
adjourn the mandatory settlement conference now scheduled for June 27, 2024, for the same
reasons as are sets forth in this motion.
3982.077/2048765 . l

Case 1:23-cv-10159-LAK Document 53 Filed 06/05/24 Page 2 of 4

Hon. Lewis A. Kaplan
June 5, 2024
Page 2

Mama" and that since the track's release in 1995 he has not received credit, writer royalties, or
the full amount of producer royalties due to him. Plaintiff accuses defendant Tony Pizarro
("Pizarro"), who has been credited as a co-author and producer of "Dear Mama" since 1995, of
misappropriating plaintiffs credits and royalties, and alleges that Pizarro has been openly and
notoriously publicizing his role as "Dear Mama's" co-writer and producer in interviews and on
social media "for years" without giving credit to plaintiff. Plaintiff has alleged no cogent theory
as to why the defendants other than Pizarro should be held responsible for his claims, and has
stated that he may dismiss some defendants, whom he does not identify. (Ex. 1.)
Plaintiffs thirty-year old claims are time barred. Plaintiff relies on the discovery rule to
excuse his decades-long delay, claiming that his lack of sophistication prevented him from
discovering his claims earlier. However, plaintiffs admissions in his complaint and first
amended complaint (the "FAC") show that he has been on notice of his claims since "Dear
Mama" was released twenty-nine years ago.
Defendants agreed to stay the instant action and participate in an MSC because plaintiffs
counsel represented to the undersigned that this case was not a "hold up" and that plaintiff was
merely seeking formal credit and a modest writer's royalty. Since then, plaintiff has made it
abundantly clear that he and this case are not ready for a serious settlement discussion.
First, instead of a modest royalty, plaintiff is now demanding hundreds of thousands of
dollars from each defendant, and a writer's share of"Dear Mama" that is twice what the Tupac
Shakur estate receives for Shakur's lyrical contribution. (Ex. 2.) Second, Pizarro has not
appeared in the action, and it is uncertain whether plaintiff has even served him. Without
Pizarro-according to plaintiff, the real wrongdoer-the case cannot settle. Third, the cost of the
MSC is prohibitive. Moving defendants are based in California, and participating in the MSC,
including preparation, travel expenses and attorney time, will cost between $40,000 and $50,000.
Other defendants' combined attendance will also cost tens of thousands of dollars. Those
amounts are far more than the cost of a motion to dismiss. Moreover, if the defendants who have
appeared settle, they risk being brought back into the dispute should Pizarro seek contribution
against them.

2.

Plaintifrs Claims Are Untimely, as a Matter of Law

Courts regularly dismiss copyright claims on statute of limitations grounds at the
pleadings stage where "it is clear from the face of the complaint and matters of which the court
may take judicial notice, that the plaintiff's claims are barred as a matter of law." PK Music
Performance, Inc. v. Timberlake, 2018 WL 4759737 * 6 (S.D.N.Y. September 30, 2018).
"Civil actions for copyright infringement must be 'commenced within three years
after the claim accrued.' " Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120,

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i

_..,

Case 1:23-cv-10159-LAK Document 53 Filed 06/05/24 Page 3 of 4

Hon. Lewis A. Kaplan
June 5, 2024
Page 3

124 (2d Cir. 2014) (quoting 17 U.S.C. § 507(b)). In Psihoyos, the Second Circuit
joined all other circuits that have considered the issue by adopting the "discovery
rule" to determine when an infringement claim accrues: "copyright infringement
claims do not accrue until actual or constructive discovery of the relevant
infringement." Id. Therefore, a copyright infringement claim accrues when a
plaintiff discovers, or with due diligence should have discovered, the relevant
infringement. Id. The standard for whether a plaintiff should have discovered the
relevant infringement is an objective one. See Staehr, 547 F.3d at 427 . Id.
Plaintiff attempts to excuse waiting thirty years to bring his claims on the grounds that he
is "unsophisticated." However, the FAC admits that plaintiff has been aware that he was not
receiving the credit he now claims for decades. Plaintiff admits that "Dear Mama" is an "epic
landmark in hip-hop music culture" (,r 2), that Pizarro has touted himself as the writer of "Dear
Mama" "for years" (,r 55), that Pizarro falsely (and publicly) registered the copyright in his name
and without listing plaintiff as a co-writer (,r,r 66, 72), that the 2005 book Tupac Shakur: 2Pac in
the Studio (The Studio Years (1989-1996) repeats Mr. Pizarro's false claims, and, most glaringly,
the following:
Thereafter, Pizarro took every opportunity possible in public forums, websites,
social media, Pizarro's own public relations forums and interviews to lay claim to
every aspect of the written creative work associated with "Dear Mama" and "Dear
Mama Remix" and, by his blanket claim to all the written creative work, overtly,
expressly and intentionally foreclosed upon, misappropriated and assumed
thereafter Master Tee's identity as the writer of "Dear Mama." Id., at ,r 70.

3.

The Parties' Settlement Discussions

On April 23, 2024, after inducing defendants to agree to stay the action with promises
that plaintiff was seeking a modest settlement, plaintiffs counsel sent the email, a copy of which
is attached hereto as Exhibit 2, proposing a $1 .6 million cash settlement or a $200,000 cash
settlement, an award of a 15 percent writer's royalty for "Dear Mama" and a doubling of his
producer royalty. The demand would be pure fantasy even if plaintiffs claims were timely.
First, a 15% writer's royalty would be nearly twice the Shakur Estate's 8.33% royalty.
Second, there is no basis to increase plaintiffs producer royalty, as his producer royalty is set by
a written contract that he signed in the 1990s. (His desire to litigate the validity of a contract that
his nearly thirty years old, when records and witnesses are no longer available, underscores the
prejudice his delay in bringing his claims has caused.)

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Case 1:23-cv-10159-LAK Document 53 Filed 06/05/24 Page 4 of 4

Hon. Lewis A. Kaplan
June 5, 2024
Page4

Since receipt of plaintiffs April 23, 2024, demand, moving defendants and other
defendants in the case have urged plaintiff to examine the case and formulate a proposal that is
realistic. See Exs. 3, 4. Plaintiff has not done so.

4.

Conclusion.

Defendants respectfully request that the Court grant the instant motion, vacate the
standstill order, and set a date at least two weeks after the Court's ruling on this motion for
defendants to file their motion to dismiss, because Pizarro cannot be compelled to attend an MSC
and the cost of participating in the mediation will be far more than the value of the case and the
cost of litigating it to dismissal.
Very truly yours,
Isl Stephen D. Rothschild

Stephen D. Rothschild
of King, Holmes, Paterno & Soriano, LLP
SDR:sk
Enclosures

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