United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
TAYLOR SWAIN United States District Judge
November 5, 2015, this Court adopted a report and
recommendation by Magistrate Judge Francis and dismissed the
then-operative First Amended Complaint (docket entry no. 34
(“FAC”)) by Plaintiff Anne Bryant, pro
se, but permitted Plaintiff to replead certain of her
claims. See Bryant v. Comm'r of Social Security,
No. 14 CV 5764, 2015 WL 6758094 (S.D.N.Y. Nov. 5, 2015).
Thereafter, on December 17, 2015, Bryant filed her Second
Amended Complaint. (Docket entry no. 66 (“SAC”).)
Defendants Broadcast Music, Inc. (“BMI”) and
Hasbro, Inc. (“Hasbro”) have moved to dismiss the
January 2017, Plaintiff submitted two applications for orders
to show cause directed at BMI and Hasbro. (Docket entry nos.
114 and 116.) The Court denied these applications in light of
the pending motions to dismiss. (Docket entry no. 115.)
Plaintiff thereafter submitted a letter, which the Court
construes as a motion for reconsideration, asserting that her
applications for orders to show cause should be granted
regardless of the outcome of the motions to dismiss. (Docket
entry no. 118.)
Court has carefully reviewed the submissions of all parties,
and for the following reasons, grants both BMI and
Hasbro's motions to dismiss, and dismisses the SAC as
against the remaining named defendant, William Dobishinski,
sua sponte. Because the SAC will therefore be
dismissed in its entirety, the Court denies Plaintiffs'
motion for reconsideration of the Court's denial of her
applications for orders to show cause.
relevant and extensive factual background for this case is
fully described in this Court's prior opinion and in
Magistrate Judge Francis' prior Report and
Recommendation. Bryant, 2015 WL 6758094, at *2,
*8-10. The following is a summary of the facts relevant to
resolution of the instant motions.
Anne Bryant is a composer and songwriter who has licensed her
work for use in broadcast media. (SAC ¶ 3.) Defendant
BMI is a performance rights organization that collects
royalty payments from licensees of musical works and
distributes those royalties to the songwriter or owner of the
work. (SAC ¶ 5.) Defendant Hasbro develops various
entertainment properties and licenses musical works,
including Plaintiff's, for use in television shows and
movies. (SAC ¶¶ 9-10.)
1971 internal BMI document, Plaintiff's Social Security
Number (“SSN”) was recorded incorrectly as ending
in -8867, when Plaintiff's correct SSN ends in 8567. (SAC
Exs. A & B; ¶ 13.) On October 15, 1991, BMI sent
Plaintiff a letter stating that the IRS had informed BMI of
this error and discrepancy. (SAC Ex. C (the “1991
Letter”).) The 1991 Letter refers to an earlier,
October 1990, letter that discussed the same discrepancy.
(Id.) In the 1991 Letter, BMI relayed advice from
the IRS about correcting the error and provided a telephone
number for Plaintiff to contact BMI with further questions.
(Id.) Plaintiff alleges that her Form 1099s from BMI
contained an incorrect SSN through 1992, and that her income
was therefore not fully credited to her SSN for purposes of
later calculating her Social Security benefits. (SAC ¶
29-31.) Based on these facts, Plaintiff alleges that BMI was
negligent in their record keeping and control over
Plaintiff's personal information, fraudulently concealed
the change in Plaintiff's SSN, and engaged in a
conspiracy in furtherance of that fraudulent concealment.
(SAC ¶¶ 65, 67, 68.)
also alleges that, beginning in 1985, BMI mailed
Plaintiff's Form 1099s containing the incorrect SSN to
Defendant Dobishinski, an attorney hired by Defendant Griffin
to administer Griffin's publishing catalogues. (SAC
¶¶ 6, 23.) Plaintiff alleges that this was done
pursuant to a power of attorney (SAC Ex. O) she claims was
forged. (SAC ¶ 23.) Plaintiff claims that, due to the
use of an incorrect SSN, Plaintiff's royalty income was
not credited to her by Dobishinski from 1985 to 1992. (SAC
Plaintiff alleges that BMI misattributed certain of
Plaintiff's works to accounts in the name of “Anne
Marie Bryant, ” which Plaintiff asserts was used to
misdirect royalties to which Plaintiff was entitled. (SAC
¶ 54.) Plaintiff alleges that this misattribution
occurred in approximately 1985. (Id.) Plaintiff also
alleges that, since 1990, she has received royalties for
background cues, but not for “themes and feature songs,
” because those (more lucrative) works are registered
to “Anne Marie Bryant” rather than Plaintiff.
(SAC ¶ 57.)
Plaintiff alleges that she produced musical works for Thomas
Griffin and his company Sunbow Productions Inc.
(“Sunbow”), which held the copyright in
Plaintiff's productions pursuant to an agreement the SAC
terms the “JEM Agreement.” (SAC ¶ 81 &
Ex. S.) Plaintiff alleges that the JEM Agreement is invalid
because it was signed by Sunbow and “Kinder &
Bryant Ltd.” - a company Plaintiff claims does not
exist. (SAC ¶¶ 52-54.) Plaintiff alleges that
Dobishinski was the “Administrator” for Griffin.
(SAC ¶ 54.) Plaintiff alleges that she was not paid fees
required by the JEM Agreement (SAC ¶ 55(g)) and further
alleges that this constituted copyright infringement (SAC
alleges that Hasbro is vicariously liable for all of
Dobishinski's actions based on a contract between Hasbro
and Dobishinski. (SAC ¶ 79.) As against Dobishinski, and
against Hasbro through the doctrine of respondeat superior,
Plaintiff alleges claims for fraudulent concealment,
conversion, conspiracy, and copyright infringement as
conversion. (See SAC ¶¶ 37-63.)
considering a motion to dismiss pursuant Federal Rule of
Civil Procedure 12(b)(6), a court must accept as true all
well-pleaded facts alleged in the complaint and draw all
reasonable inferences in the plaintiff's favor.
Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229,
237 (2d Cir. 2007). In addition, in evaluating the legal
sufficiency of a pro se plaintiff's claims, a
court may rely on factual allegations and other materials
submitted with the plaintiff's opposition papers, as long
as they are consistent with the allegations in the complaint.
See Vlad-Berindan v. MTA New York City Transit, No.
14 Civ. 675, 2014 WL 6982929, at *6 (S.D.N.Y. Dec. 9, 2014).
The plaintiff's submissions need not contain detailed
factual allegations, but must contain more than mere
“‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Where the factual allegations
permit the court to infer only that it is possible, but not
plausible, that misconduct occurred, the complaint must be
dismissed. Id. at 679 (citing Fed.R.Civ.P. 8(a)(2)).
Submissions of pro se litigants are held to less stringent
standards than those drafted by lawyers. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). The pleadings and
submissions of a pro se party are read “to
raise the strongest arguments that they suggest.”
Green v. United States, 260 F.3d 78, 83 (2d Cir.
2001) (quoting Graham v. Henderson, 89 F.3d ...