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Wingspan Records, Inc. v. Simone

United States District Court, S.D. New York

December 5, 2014

WINGSPAN RECORDS, INC., Plaintiff,
v.
WINSTON SIMONE and DAVID SIMONÉ, Defendants.

Lita Rosario, Esq., Washington, DC, Attorney for Plaintiff.

Joseph E. Gehring, Jr., Esq., Gehring & Satriale LLC, New York, NY, Attorney for Defendants.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

Before the Court is plaintiff's motion to reconsider our dismissal of claims against the last remaining defendants in this action.[1] Plaintiff's motion does not set forth "controlling decisions or data that the court overlooked, " Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995), but instead advances a mixture of new arguments that plaintiff did not previously raise and old arguments that we considered and rejected. Accordingly, we deny plaintiff's motion.

I. BACKGROUND

Our opinion of May 15, 2014, sets forth the underlying facts in detail. See Wingspan Records at *1-2 (drawing facts from the Third Amended Complaint). We recite only those facts that are essential to this opinion.

On January 26, 2006, plaintiff entered into a settlement agreement (the "Agreement") with several entities and individuals to resolve disputes over ownership and authorship of a musical composition entitled "Who Let the Dogs Out." The named parties to the Agreement were Kingstreet Media (Music Publishing) 2, LLC ("Kingstreet"), as successor to Deston Songs, LLC ("Deston Songs")[2]; Hyckryck Music Publishing ("Hyckryck"); A. Scott Brooks; Charles Fulp; Osbert Gurley; Rodriguez Amar; and Anslem Douglas.

David Simone and Winston Simone (the "Simone Defendants") are former employees and former partial owners of Deston Songs. Although the Simone Defendants sold their shares of Deston Songs and ceased their employment in March 2005, they continued to participate in the negotiations over the Agreement through execution of the Agreement in 2006.

Among other things, the Agreement provided that plaintiff, Hyckryck, and Mr. Gurley would share a 25% interest in "Who Let the Dogs Out." Kingstreet was to pay $1, 500, 000 immediately to those three parties as a good faith estimate of their share of gross earnings from 2000 to June 30, 2005. Next, Kingstreet was to furnish plaintiff with a schedule of revenues, and an independent audit (the "Initial Audit") was to determine by April 26, 2006, whether the $1, 500, 000 was in fact an overpayment or an underpayment of the royalties due through June 2005.

Kingstreet paid the $1, 500, 000 initial payment. In March 2006, plaintiff requested that Kingstreet provide a schedule of revenues and assist in conducting the Initial Audit. Kingstreet ignored plaintiff's request, and the Initial Audit never happened.

Instead, Kingstreet's successor by merger, Crosstown Music Company 1, LLC ("Crosstown"), finally produced an unaudited schedule of revenues on November 21, 2006. This schedule showed that the Initial Payment had overcompensated plaintiff by $251, 321 for plaintiff's share of royalties earned before June 30, 2005. Crosstown also informed plaintiff that Crosstown had already deducted this $251, 321 in June 2006 from royalties earned after June 30, 2005.

II. PROCEDURAL HISTORY

A. The Complaints

Plaintiff filed a complaint (the "Original Complaint") on March 23, 2012, against Kingstreet, Hyckryck, and BMG Rights Management (US), LLC (a company that began to perform administrative duties relating to "Who Let the Dogs Out" sometime in or after 2008). The Original Complaint alleged that Kingstreet and BMG had breached the Agreement by failing to conduct the Initial Audit, by failing to conduct another audit that plaintiff requested in 2010, and by paying Hyckryck and Gurley money owed to plaintiff. The Original Complaint also sought a declaratory judgment regarding a 2002 agreement between plaintiff and Hyckryck.

On October 16, 2012, plaintiff filed an amended complaint (the "First Amended Complaint") in which, for the first time, plaintiff alleged that the Simone Defendants were jointly liable with Kingstreet and that David Simone had received the $251, 321 that Crosstown had withheld from plaintiff in June 2006. ...


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