United States District Court, S.D. New York
June 15, 2004.
ROBERT JAMES, et al., Plaintiffs,
UNIVERSAL MOTOWN RECORDS, INC., et al., Defendants.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Plaintiffs claim to be the co-writers and copyright proprietors
of songs entitled "We Should Be Making Love" and "Caught in a
Trap" (collectively, the "Works"), that the Works rere recorded
by a group called Proyecto Uno and included on an album entitled
"Four," that the album was released in the United States in 1999
without their authorization, and that at least some of the
defendants are selling the album or other allegedly infringing
material here now. They sue Univeral Motown Records, Inc. and
Universal Music International, Inc. divisions of Universal Music
Group, Inc. (collectively "Universal") as well as Jelly's Jams
LLC ("Jelly's"), Hogland Records and P1 Music for copyright
infringement. The matter is before the Court on motions for
summary judgment by Universal and Jelly's and plaintiff's
cross-motion for partial summary judgment. The central point of
contention seems to be Universal's assertion that it is
responsible for no sales in the United States, that there in
consequence has been no infringement, and that the Court
therefore lacks subject matter jurisdiction. It asserts that the
only sales complained of occurred abroad and that Universal never
sold the album in this country.
Universal's motion is supported principally by an affidavit of
a vice president of legal and business affairs of Universal Music
Latin America, a division of UMG Recordings, Inc. The witness
claims that he has "personal knowledge of the facts alleged
herein based on my involvement in this matter and/or my review of
the relevant documents and files." Batista Aff. ¶ 1.
Rule 56(e) provides in relevant part that "[s]upporting and
opposing affidavits [on summary judgment motions] shall be made
on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein."
The Batista affidavit does not comply with the rule. It does not
indicate where his personal knowledge leaves off and his
impressions based on some undefined "involvement . . . and/or"
his review of unspecified files begins. Nor does it affirmatively
show that he is competent to testify to the matters stated in the affidavit
or that the facts in questions are admissible in evidence.
Universal's motion, which has been joined in by Jelly's,
therefore must be denied.
Plaintiffs' cross-motion stands no better. Neither their
affidavits nor their Rule 56.1 Statement remotely approaches a
demonstration that there are no disputed issues of material fact
or that they are entitled to judgment as a matter of law.
Accordingly, all of the motions are denied.
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