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October 21, 1998

SONGBYRD, INC., Plaintiff,
ESTATE OF ALBERT B. GROSSMAN, dba Bearsville Records, Inc., Defendant.

The opinion of the court was delivered by: HOMER


 Plaintiff Songbyrd, Inc. ("Songbyrd") brought this action seeking monetary damages and a declaration of rights in certain recorded music tracks. Presently pending is a motion by defendant Estate of Albert B. Grossman, doing business as Bearsville Records, Inc. ("Bearsville") for summary judgment pursuant to Fed. R. Civ. P. 56 on the ground that the action is barred by the applicable statute of limitations. Docket No. 40. Songbyrd opposes the motion. Docket No. 43. For the reasons which follow, the motion is granted.

 I. Facts1

 This case concerns the possession, ownership, and usage of several master recordings of musical performances made in the early 1970s by New Orleans musician Henry Roeland Byrd, who was professionally known as "Professor Longhair" ("Byrd"). *fn2" The tapes were produced in a Baton Rouge, Louisiana recording studio and soon thereafter came into the possession of a predecessor in interest to Bearsville located in Woodstock, New York. Over time several requests have been made by representatives of Byrd to secure return of the tapes. Cometti Aff. (Docket No. 40), P 10. It is unclear what if any response those requests received, but the tapes have remained in the physical custody of Bearsville continuously since the 1970s. Id. at P 11.

 In August 1986, Bearsville licensed certain of the master recordings to Rounder Records Corporation, which in 1987 released an album of Byrd's music produced from the recordings. Cometti Aff., P 12. In 1991, another recording based on the disputed master recordings was released by Rhino Records. That release was made possible by a licensing agreement between Bearsville and the production company. Id. at P 13.

 II. Procedural Background

 Originally filed in Louisiana state court in 1995, this action was removed by Bearsville to the United States District Court for the Eastern District of Louisiana. Docket No. 1. Bearsville then moved pursuant to Fed. R. Civ. P. 12(b) to dismiss the claim on the ground that the court lacked personal jurisdiction and the claim was barred by Louisiana's period of prescription. *fn3" The district court held that the action was barred by the applicable prescriptive period and granted the motion without addressing the jurisdictional question. Songbyrd, Inc. v. Bearsville Records, Inc., 1996 U.S. Dist. LEXIS 8728, Civ.A. No. 95-3706, 1996 WL 337259 (E.D. La. June 18, 1996). Songbyrd appealed and the Fifth Circuit Court of Appeals reversed, holding that the claim was not prescribed under Louisiana law. 104 F.3d 773, 779 (5th Cir. 1997). On remand, the district court considered the question of personal jurisdiction, concluded that jurisdiction was lacking, and transferred the action to this district. Docket No. 40, Ex. E. The present motion followed.

 III. Summary Judgment Standard

 Under Fed. R. Civ. P. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to judgment as a matter of law, . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The moving party bears the burden of demonstrating that no genuine issue of material fact exists. FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994); see also Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). Once the movant has come forward with sufficient evidence in support of the motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed. R. Civ. P. 56(e); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).

 The trial court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). "Furthermore, the non-movant 'will have his allegations taken as true, and will receive the benefit of the doubt when his assertions conflict with those of the movant.'" Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996) (citations omitted).

 IV. Discussion

 A. Choice of Law

 When venue is originally placed in one jurisdiction and then transferred to another, it is generally the law of the transferor jurisdiction that applies in the new court. Ferens v. John Deere Co., 494 U.S. 516, 523, 108 L. Ed. 2d 443, 110 S. Ct. 1274 (1990); Van Dusen v. Barrack, 376 U.S. 612, 639, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964). An exception exists when the transfer is made on the ground that the venue was improperly laid in the first instance, i.e., that the original court lacked personal jurisdiction over the defendant, rather than simply for the convenience of the parties. In those cases the transferee court applies the law of the forum in which it sits. Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir. 1996); Muldoon v. Tropitone Furniture Co., 1 F.3d 964, 967 (9th Cir. 1993); Manley v. Engram, 755 F.2d 1463, 1467 n. 10 (11th Cir. 1985); Davis v. Louisiana State Univ., 876 F.2d 412, 414 (5th Cir. 1989). The ...

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