Daniel Rothstein, for Plaintiff ANNA EFIMOVNA KHALDEI.
Margaret Dale, PROSKAUER ROSE LLP, for Defendant KALMAN KASPIEV.
OPINION & ORDER
JOHN F. KEENAN, District Judge.
Plaintiff Anna Efimovna Khaldei and Defendant Kalman Kaspiev have each moved for summary judgment on various issues in the instant litigation. This Opinion contains the Court's rulings on each motion in turn.
A. Facts and Procedural History
Plaintiff is the daughter and heir of the late World War II photographer Evgeny Khaldei ("Evgeny"). Plaintiff alleges that in March 1997, shortly before Evgeny's death, Evgeny entered into an agency agreement with Defendant. The agreement stated that Defendant would act as Evgeny's worldwide agent for twenty years for the "promotion and sale of photographs produced for sale from the negatives." (Rothstein Aff. Ex. 2.) The next day, Evgeny entered into a licensing agreement with Corbis, a digital archive that licenses images to third parties. Among other provisions, the Corbis agreement called for Evgeny, Defendant, and Corbis to select images for licensing, and for Evgeny to transport the original negatives they selected to Corbis, which would return them to Evgeny after scanning them. (Rothstein Aff. Ex. 3.)
Despite the licensing agreement's provision to the contrary, Defendant later instructed Corbis to return the negatives directly to him. (Rothstein Aff. Ex. 5.) Defendant claims that he did this because Evgeny had wanted him to oversee the donation or sale of the images to the U.S. Library of Congress. (Def. Br. at 3-4.) The negatives returned to Defendant by Corbis, as well as a disputed number of photographs given by Plaintiff to Defendant in December 1997 (collectively, the "Materials"), are at the heart of this litigation.
After Evgeny's death, Plaintiff and Defendant initially agreed that Defendant would continue to serve as agent. However, the parties began to disagree about issues such as the splitting of royalties and costs, and whether Plaintiff and Defendant were each fulfilling their obligations under the agency agreement. Ultimately, Plaintiff's prior counsel tried to contact Defendant and terminate the agency agreement, using an address and telephone number for Defendant in Long Branch, New Jersey. The attorney's calls were not returned and the letter was returned undeliverable. (Rothstein Aff. Ex. 25; Richter Dec. Exs. 13, 14.)
In January 2001, Plaintiff initiated a lawsuit against Defendant in New Jersey state court for replevin and damages. She repeatedly attempted to serve Defendant at the same Long Branch address. In an affidavit filed in the New Jersey court, the process server stated that he left the papers with Defendant's wife. (Rothstein Aff. Ex. 27.) However, the woman living there, Marina Otis, maintains that she was never Defendant's wife, although they had once been in a relationship, and that while Defendant had stayed at her Long Branch house previously, he had moved by January 2001. Otis further asserts that she explained this to the process server, who apparently returned to the house later that day and taped the papers to her door. Otis sent the service papers to the clerk of court in New Jersey, along with a letter explaining that Defendant no longer lived with her. Notwithstanding her efforts, the Monmouth County Sherriff's Office tried to execute a writ of replevin at her house in August 2001. Otis told the officer that Defendant no longer lived there but gave him a new address for Defendant on 93rd Street in Manhattan. See generally Otis Dec. & Ex. 1.
Relying on this now-disputed service, Plaintiff eventually obtained a default judgment of replevin in New Jersey state court in 2002. Plaintiff did not pursue her damages claims because she could not find Defendant, and the court administratively dismissed the case. (Pl. Br. at 4.) Defendant contends that he learned of the action against him at some point "between 2003 and 2005, " but when he went to the courthouse, the clerk told him that the case had already been dismissed. (Def. Br. at 7.)
Plaintiff or her counsel finally reached Defendant by telephone in 2007, and thereafter had several discussions about settling the dispute. (Pl. Aff. ¶ 18.) Those discussions bore no fruit. In 2010, Plaintiff revived her New Jersey judgment against Defendant and reasserted her damages claims. In a letter to the New Jersey court, Defendant requested that the case be transferred to New York because he could not travel to New Jersey to contest the action. (Pl. Br. at 4-5.) Plaintiff consented, the instant action was opened, and Defendant found pro bono counsel. Since then, the parties have vacillated between settlement negotiations and rancorous motion practice.
B. The Instant Motions
Although these summary judgment motions have been fully briefed for several months, their resolution has been delayed by the parties' actions since that time. It is appropriate to set forth those developments before turning to the merits analysis.
The instant motions were first discussed at a status conference on February 5, 2013, when Plaintiff's counsel announced his intention to move for summary judgment on various issues prior to the close of discovery. Defense counsel objected, in part because significant discovery had yet to take place. This Court set a briefing schedule whereby Plaintiff would make her motion and Defendant could either respond substantively or attempt a showing that consideration of the motion would be premature under Rule 56(d) of the Federal Rules of Civil Procedure. The Court also stated that settlement negotiations and discovery regarding damage to the Materials should continue in the interim.
After another round of quarreling about the briefing schedule, Plaintiff served her summary judgment motion on February 26, 2013. Plaintiff's motion was essentially twofold. First, she sought to take possession of the Materials, which are currently deposited at a Cirkers art storage facility pursuant to the Court's impoundment order of March 29, 2011. (ECF No. 18.) As part of this request, Plaintiff sought enforcement of the New Jersey default ...