Emrit v. VEVO, LLC et al

Filing 49

REPORT AND RECOMMENDATION: The Court respectfully RECOMMENDS that the motion to dismiss (Docket Entry No. 25) filed by Defendant Sony Music Entertainment be GRANTED and that this defendant be DISMISSED from the action. Signed by Magistrate Judge Barbara D. Holmes on 3/28/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RONALD SATISH EMRIT

)
)
v.
)
)
VEVO, LLC, SONY MUSIC ENTERTAINMENT, )
WARNER MUSIC GROUP, INC.
)
and BLUE2DIGTIAL, INC.
)

NO:

3:15-0970

TO: Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION
By Order entered October 9, 2015 (Docket Entry No. 8), the Court referred this pro se action
to the Magistrate Judge to enter a scheduling order for management of the case, to dispose or
recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to
conduct further proceedings, if necessary, under Rule 72(b) of the Federal Rules of Civil Procedure,
and the Local Rules of Court.
Pending before the Court is the motion to dismiss (Docket Entry No. 25) filed by Defendant
Sony Music Entertainment (“SME”).1 Plaintiff has not responded to the motion. For the reasons
set forth below, the Court recommends that the motion be granted.

I. BACKGROUND
Plaintiff Ronald Satish Emrit (“Plaintiff”), a resident of Nevada, filed this action pro se and
in forma pauperis on September 8, 2015, against four defendants: SME, Vevo, LLC. (“Vevo”),
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This Defendant asserts in its motion that it has been incorrectly identified in the Complaint
as “Sony BMG, Inc.”

Warner Music Group, Inc. (“Warner”), and Blue2Digital, Inc. (“Blue2Digital”). Plaintiff brings
claims for breach of contract, negligence, conversion, intentional infliction of emotional distress,
civil fraud/material misrepresentation, and tortious interference with business relations/contracts.
See Complaint (Docket Entry No. 1) at 1. He also brings claims for violations of four federal
statutes, id. at 8-10, and contends that federal jurisdiction exists under both 28 U.S.C. §§ 1331 and
1332. Plaintiff seeks damages of $45,000,000.00 and injunctive relief, including an order that
Defendants provide him with “a record deal.” Id. at 10-11.
Plaintiff asserts that he paid Defendant Blue2Digital $30.00 to have certain of his music
videos distributed, including being part of a web platform operated by Defendant Vevo, see
Complaint at ¶ 14, but that, at some point in time, eight of his music videos were removed from the
Vevo website because “Vevo no longer carries the library of material provided by Blue2Digital . . . .”
Id. at ¶ 27. Plaintiff’s sole allegation against SME and Warner are that they should be held
“vicariously liable through the doctrine of respondeat superior since Vevo appears to be a subsidiary
of the major record labels including but not limited to [SME] and [Warner].” Id. at ¶ 28. Process
was issued on October 9, 2015, see Docket Entry No. 9, but only Defendant SME has appeared in
the action.
By its motion to dismiss, Defendant SME argues that the Complaint does not set forth any
factual allegations against it and offers no basis for a claim of independent liability against SME.
Further, Defendant SME argues that Plaintiff’s theory of respondeat superior liability is not based
on any facts and fails to support a claim for relief against SME. See Motion to Dismiss (Docket
Entry No. 25). By Order entered December 22, 2015 (Docket Entry No. 36), Plaintiff was advised
of the motion, given a deadline of January 22, 2016, to respond, and advised that his failure to timely
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respond may result in a recommendation for the dismissal of Defendant SME. To date, Plaintiff has
not responded to the motion to dismiss.

II. ANALYSIS
The motion to dismiss of Defendant SME should be granted. First, Plaintiff has not opposed
the motion to dismiss. Failure to file a timely response to a motion indicates that there is no
opposition to the motion. Local Rule 7.01(b). In the Order entered December 22, 2015, Plaintiff
was specifically advised by the Court of the need to respond and that his failure to respond may
result in the motion being granted.
Second, review of the motion to dismiss indicates that Defendant SME has set forth
persuasive and meritorious arguments that warrant dismissal of the claims brought against it.
Plaintiff has not rebutted these arguments. Plaintiff’s complaint fails to include any factual
allegations that are specific as to any conduct of Defendant SME. Further, his assertion of
respondeat superior liability is conclusory and speculative. Merely positing a general theory of legal
liability that is unsupported by specific factual allegations does not state a plausible claim for relief
which survives a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009). Even when the Court accepts Plaintiff’s well pleaded factual allegations
as true and resolves all doubts in his favor as the non-moving party, Plaintiff has not shown that he
is entitled to relief against Defendant SME based upon his allegations. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See also Iqbal, supra;
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). In the absence
of a response from Plaintiff as to why his claims against Defendant SME should not be dismissed,
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it is not the duty of the court to “abandon its position of neutrality in favor of a role equivalent to
champion for the non-moving party: seeking out facts, developing legal theories, and finding ways
to defeat the motion.” Guarino v. Brookfield Township Trustees, 980 F.2d 399, 406 (6th Cir. 1992).

RECOMMENDATION
The Court respectfully RECOMMENDS that the motion to dismiss (Docket Entry No. 25)
filed by Defendant Sony Music Entertainment be GRANTED and that this defendant be
DISMISSED from the action.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within ten (10) days of receipt of this notice and must state with particularity the specific
portions of this Report and Recommendation to which objection is made. Failure to file written
objections within the specified time can be deemed a waiver of the right to appeal the District Court's
Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466,
88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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