United States District Court, S.D. New York
October 4, 2005.
FREEPLAY MUSIC, INC., Plaintiff,
COX RADIO, INC., CUMULUS MEDIA, INC., ENTERCOM COMMUNICATIONS CORP., BEASLEY BROADCAST GROUP, INC., CITADEL BROADCASTING CORP., and VIACOM, INC., Defendants.
The opinion of the court was delivered by: GERARD LYNCH, District Judge
OPINION AND ORDER
Plaintiff Freeplay Music, Inc., the owner of certain musical
composition copyrights, has sued a number of radio broadcasters,
including Beasley Broadcast Group, Inc., alleging violation of
its copyrights. On June 23, 2005, this Court dismissed the
complaint against Beasley for lack of personal jurisdiction,
Freeplay Music, Inc. v. Cox Radio, Inc., No. 02 Civ. 5238
(GEL), 2005 WL 1500896 (S.D.N.Y. June 23, 2005), while denying
motions to dismiss for failure to state a claim as to the
remaining defendants, Freeplay Music, Inc. v. Cox Radio, Inc.,
No. 02 Civ. 5238 (GEL), 2005 WL 1500898 (S.D.N.Y. June 23, 2005).
Freeplay filed a notice of appeal of the dismissal of its claim
against Beasley on July 21, 2005. By letter of August 31, 2005,
styled as a "request for clarification" of the Court's Order, Freeplay now
requests that the Court "indicate whether the Order is appealable
at this time or whether the Order is appealable only upon the
conclusion of the lawsuit against the five remaining defendants."
(Letter from Gabriel Fischbarg, Esq., to the Court, dated August
31, 2005, at 1.) In effect, Freeplay asks the Court to direct
immediate entry of judgment pursuant to Rule 54(b) of the Federal
Rules of Civil Procedure, thus permitting an immediate appeal of
what would otherwise be an unappealable interlocutory order.
Simultaneously, Freeplay also requests "that the Court amend the
Order to transfer the action against Beasley to the Middle
District of Florida." (Id. at 2.) Freeplay does not indicate
that these requests are in the alternative, or acknowledge any
inconsistency between them. Beasley opposes both requests,
arguing that the Court lacks jurisdiction to consider them and
that they should be denied on the merits. (Letter from Bruce P.
Keller, Esq., to the Court, dated September 6, 2005 ("Keller
The application for entry of immediate judgment will be
granted, and the application for transfer of the action will be
Beasley's argument that the Court lacks jurisdiction over
Freeplay's requests is rooted in the fundamental rule that once
an appeal is docketed, the District Court is divested of
jurisdiction over the matter. Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 59 (1982). This rule applies to
Freeplay's request to transfer venue.
The Court's prior Order granted relief sought by Beasley,
dismissing the complaint for lack of personal jurisdiction.
Freeplay never moved for transfer of venue, or suggested in its response to Beasley's motion that such a remedy would be more
appropriate than dismissal, if the Court found that Beasley's
motion had merit. By seeking this relief now, Freeplay asks the
Court to withdraw the very Order that is on appeal, and
substitute alternative relief relief that would render the
appeal moot, and that would in fact deprive the Court of Appeals
of jurisdiction. See Fort Knox Music Inc. v. Baptiste,
257 F.3d 108, 109-11 (2d Cir. 2001) (explaining that a district
court's sua sponte vacating of a judgment rendered it moot for
appeal); Nascone v. Spudnuts, Inc., 735 F.2d 763, 766 (3d Cir.
1984) (holding that an order transferring action to different
district was not appealable); Fischer v. First Nat'l Bank of
Omaha, 466 F.2d 511, 511 (8th Cir. 1972) ("[A]n order by a
district court transferring an action to another district court
is an interlocutory order and is nonappealable."); Stelly v.
Employers Nat'l Ins. Co., 431 F.2d 1251, 1252 (5th Cir. 1970)
(holding that an "order of the district court [transferring
venue] was interlocutory and that the appeal was properly
dismissed"). See also 15 Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure §
3846 at 357 (2d ed. 1986) ("[W]hen a motion for transfer . . .
[is] granted, the transferor court and the appellate court that
has jurisdiction over it lose all jurisdiction over the case
and may not proceed further with regard to it.").
As the Second Circuit has held, "[t]he divestiture of
jurisdiction rule is, however, not a per se rule. It is a
judicially crafted rule rooted in the interest of judicial
economy. . . . Hence, its application is guided by concerns of
efficiency and is not automatic." United States v. Rodgers,
101 F.3d 247, 251 (2d Cir. 1996). By filing a notice of appeal,
Freeplay sought review in the Court of Appeals of this Court's
decision that personal jurisdiction was lacking. Transferring
jurisdiction to another district out of this Circuit under
28 U.S.C. § 1406 or 28 U.S.C. § 1631, which only apply if jurisdiction is lacking, would
simultaneously assume the correctness of the order under appeal
and frustrate appellate review.
The same considerations, however, do not apply to Freeplay's
request for entry of an immediate judgment pursuant to
Fed.R.Civ.P. 54(b). An order dismissing fewer than all defendants from
a case for lack of personal jurisdiction is not an appealable
order without a Rule 54(b) certification. Chapple v. Levinsky,
961 F.2d 372, 373-74 (2d Cir. 1992). Granting such certification,
if otherwise appropriate, would facilitate, rather than
frustrate, review in the Court of Appeals. Although it would have
been more proper had Freeplay sought Rule 54(b) certification
before seeking to file its notice of appeal, there is no apparent
time limit on seeking such relief. Moreover, the "concerns of
efficiency" underlying the divestiture rule would be hindered by
essentially requiring that the Court of Appeals dismiss the
appeal for lack of certification under Rule 54(b), that Freeplay
then move for certification in this Court, and then, if
certification were granted, that Freeplay file a new notice of
appeal. Efficiency counsels immediate consideration by this Court
of the application under Rule 54(b), in the expectation that, if
granted, the Court of Appeals could proceed immediately to
resolution of the merits of the appeal.
II. Rule 54(b)
When a district court dismisses a complaint as to "fewer than
all of the . . . parties," a final judgment as to that party
should be entered "only upon an express determination that there
is no just reason for delay." Fed.R.Civ.P. 54(b). The Second
Circuit has held that such certifications "should be exercised
sparingly," Advanced Magnetics, Inc. v. Bayfront Partners,
Inc., 106 F.3d 11, 16 (2d Cir. 1997) (internal quotations
omitted), and are appropriate only where they are in "the interest of sound judicial administration,"
Ginnett v. Computer Task Group, Inc., 962 F.2d 1085, 1092 (2d
That standard is met here. Freeplay's claims against Beasley
are largely identical to those against the other defendants.
While the factual underpinnings of those claims would have to be
determined separately, the real issues dividing the plaintiff and
defendants are questions of law. If Freeplay's case against
Beasley is properly brought in this Court, a binding
determination of those legal issues can be achieved in the same
proceeding, without the risk of inconsistent results in two
different courts. If Freeplay's position is ultimately sustained
in the Court of Appeals, allowing an immediate appeal permits the
case against Beasley to proceed along with those against the
other broadcasters in this Court. Conversely, if this Court's
ruling on jurisdiction is affirmed, Freeplay would learn this
result promptly, and could then either seek a transfer of venue
in this Court, if appropriate, or file a new action in a district
which has jurisdiction over Beasley. Delaying resolution of the
issue forces Freeplay to chose between deferring its claims
against Beasley to be resolved at a much later date, either in
this Court or in some other district, or withdrawing its appeal,
acquiescing in this Court's decision on personal jurisdiction,
and proceeding simultaneously in two courts. This would not be in
the interest of efficiency or justice, as compared with
presenting the Court of Appeals with a relatively straightforward
judgment about whether Beasley's contacts with New York are
sufficient to confer personal jurisdiction.
Nor would allowing an immediate appeal of the jurisdictional
issue delay adjudication of the claims against the other
defendants, as contended by Beasley. (Keller Letter at 2.) The
jurisdictional issue is entirely distinct from the merits of
those claims. Litigation of the claims against the other defendants may proceed apace. Although separate
discovery as to Beasley will have to proceed if this Court's
judgment is reversed, resolution of the legal issues in the case
may well be largely determinative of Beasley's interests if the
case is returned to this Court. Accordingly, Freeplay's request
for immediate entry of judgment dismissing its claims against
Beasley will be granted.
For the reasons stated above, the Court finds that there is no
just reason for delay, and grants Freeplay's request that the
Court direct immediate entry of judgment dismissing its claims
against Beasley for lack of personal jurisdiction. Freeplay's
request that the Court amend its dismissal of the action to
transfer the matter to the Middle District of Florida is denied
for lack of jurisdiction.
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