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Bryant v. Commissioner of Social Security

United States District Court, S.D. New York

March 15, 2017

ANNE BRYANT, Plaintiff,


          LAURA TAYLOR SWAIN United States District Judge

         On 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 SAC.

         In 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.)

         The 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.


         The 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.

         Plaintiff 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.)

         In a 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.[1]) 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.)

         Plaintiff 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 ¶ 31.)

         Separately, 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.)

         Additionally, Plaintiff alleges that she produced musical works for Thomas Griffin[2] 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.[3]) 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 ¶ 55(f)).

         Plaintiff 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.)


         When 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 ...

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