United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER, District Judge
decision resolves a pro se plaintiffs challenge to
the use of intellectual property associated with recordings
and compositions by the funk band "ESG." Plaintiff
Deborah Scroggins ("Scroggins") formed that band
with her sisters in the early 1980s. She brings claims for
copyright infringement, fraud, theft, defamation, and
infliction of emotional distress against her sister Renee
Scroggins, Conexion Media Group, Inc. ("Conexion"),
Universal Music Group ("UMG"), Fire Records of
London ("Fire Records"), and the American Society
of Composers, Authors, and Publishers ("ASCAP").
Scroggins claims that, in various ways, each defendant
unlawfully exploited recordings and compositions of works she
co-authored, did not compensate her for this use, and caused
her emotional distress.
Scroggins, Conexion, Fire Records, and ASCAP each move to
dismiss Scroggins's Complaint for lack of subject matter
jurisdiction, see Fed. R. Civ. P. 12(b)(1), and/or
failure to state a claim, see Fed. R. Civ. P.
12(b)(6). UMG moves for judgment on the pleadings,
see Fed. R. Civ. P. 12(c). For the reasons that
follow, the Court grants each motion and dismisses all of
with her sisters Renee Scroggins ("Renee") and
Valerie Scroggins ("Valerie"), Scroggins, in the
1970s, formed the funk band ESG. See Complaint
¶ 3. In or around 1980, ESG recorded three albums: (1)
an EP (extended-play) album that contained six songs,
including the song "UFO" (the "EP
Album"), (2) a disco album that contained three songs
(the "Disco Album"), and (3) an LP (long-play)
album that contained 11 songs (the "LP Album").
Id. ¶ 4. In 1987 or 1988, Scroggins left ESG.
Id. ¶ 6. In 2006, she claims, she discovered
she had been "left off' the original copyright
registration-filed by Renee-of six songs from the EP Album
that Scroggins allegedly "co-wrote and performed."
Id. ¶ 8. Scroggins then filed a duplicate
registration for those songs, naming herself, Renee and
Valerie as joint authors of the works. Id.
2009, Scroggins, proceeding pro se, filed a lawsuit
in United States District Court for the Eastern District of
New York against Renee, Valerie, and their record label, Soul
Jazz. See id., ¶ 9. Her complaint there, Dkt.
27, Ex. B ("EDNY Complaint") alleged almost
verbatim the allegations here. On October 25, 2012, after
court-ordered mediation, Scroggins and her sisters entered
into a written settlement agreement, Dkt. 27, Ex. C (the
"Agreement" or "Settlement Agreement");
see also Complaint ¶ 11. It provided that (1)
Scroggins would dismiss the Eastern District lawsuit
"with prejudice, " Agreement ¶ 1; (2)
Scroggins, for the three-month period commencing on November
1, 2012, could pursue licensing royalties, "past,
present and future" for the song "UFO, " and
would split any recovery equally among herself, Renee, and
Valerie's daughter, Chistelle Polite, id. ¶
2; (3) after that period, these parties, if they chose, could
negotiate a possible extension to the royalties arrangement,
id. ¶ 3; and (4) these parties would exchange
mutual general releases of all claims "from the
beginning of time to the date of this agreement, "
id. ¶ 4.
now alleges, however, that when she tried to enforce the
Agreement, she learned that Fire Records had
"fraudulently [and] illegally" obtained the rights
to ESG's works from Renee and was consequently "the
one doing ESG's licensing[.]" Complaint ¶¶
15-16. Scroggins then sent a cease and desist letter to Fire
Records, stating that Fire Records did not have her
permission to use any songs on the EP Album, Disco Album or
the LP Album. Id., Exs. 7-8. Despite lacking
permission from Scroggins, Fire Records continued to use the
ESG songs. Id., ¶ 16. As to other defendants
here, Scroggins alleges that UMG infringed her copyright to
"UFO, " see Id. ¶¶ 17-18, Ex. 9,
and that ASCAP "illegally with[held] [her] royalty
payments" for the songs from the albums that she claims
to have registered with it, see Id. ¶¶
failing to obtain licenses or collect royalties under the
Settlement Agreement, Scroggins moved to reopen the Eastern
District action. Complaint ¶ 13. The district court
there, however, denied that motion, because it had not
retained jurisdiction to enforce the Agreement. Dkt. 27, Ex.
D. The district court clarified for Scroggins that it had
never issued any ruling "addressing whether [Scroggins]
was a valid co-author of [ESG's] songs or whether she was
entitled to a portion of the royalties"; any right to
royalties on Scroggins's part was therefore
"pursuant to the private settlement agreement that she
reached with her sisters." Id. Scroggins
appealed the denial of her motion to reopen, but the Second
Circuit dismissed the appeal sua sponte as
time-barred and as lacking "an arguable basis in law or
fact." Dkt. 27, Ex. E.
11, 2015, Scroggins filed suit in New York State Supreme
Court (Kings County) against Renee and Valerie. Dkt. 27, Ex.
F (the "State Court Complaint"). She alleged,
inter alia, that her sisters had breached the
Settlement Agreement by failing to give her certain documents
and information, by failing to inform third parties of her
right to collect royalties for ESG's songs, and by
preventing her from collecting royalties during the
three-month period when, under the Agreement, she had the
right to pursue such royalties. Id. ¶¶
December 4, 2015, Scroggins filed the Complaint in this case,
a separate action. Dkt. 2. It explains that, while the State
Court action sought relief from her sisters' alleged
breach of the Agreement, this action brought claims of
copyright infringement and of other violations of federal and
state law. Complaint ¶ 14. Specifically, as developed
below, the Court construes Scroggins here to assert claims
for copyright infringement, fraud, theft, and defamation
against Renee, Fire Records, and UMG, and to seek royalty
payments from ASCAP. Id.
26, 2016, Renee filed a motion to dismiss. Dkt. 26. On August
15, 2016, Conexion filed a motion to dismiss, Dkt. 20, along
with a memorandum of law in support, Dkt. 21 ("Conexion
Br."). On September 2, 2016, Fire Records filed a motion
to intervene and to dismiss, Dkt. 25, along with a
declaration, Dkt. 26, and a memorandum of law in support,
Dkt. 27. On September 9, 2016, ASCAP filed a motion to
dismiss for lack of subject matter jurisdiction, under
Federal Rule 12(b)(1), Dkt. 30, and a memorandum of law, Dkt.
31 ("ASCAP Br."), and affidavit, Dkt. 32, in
support. On October 11, 2016, UMG answered the complaint.
Dkt. 42 ("UMG Answer").
October 11, 2016, the Court granted Fire Records's motion
to intervene, and set a schedule for Scroggins either to
amend her Complaint or oppose the motion to dismiss; the
Court gave Scroggins, as apro se litigant, extended
time to do so. Dkt. 43. On November 11, 2016, Scroggins filed
an opposition to the various motions to dismiss. Dkt. 46
("Scroggins Br."). On November 18, 2016, ASCAP,
Dkt. 49 ("ASCAP Rep. Br."), and Conexion, Dkt. 52
("Conexion Rep. Br."), filed reply memoranda of law
in support of their respective motions to dismiss.
December 20, 2016, UMG filed a motion for judgment on the
pleading, Dkt. 54, and a memorandum of law in support, Dkt.
55 ("UMG Br."). On December 28, 2016, the Court set
a briefing schedule for that motion. Dkt. 56. The Court
directed Scroggins to file any response by January 17, 2017.
Id. Scroggins did not do so. See Dkt. 57.
Applicable Legal Standards
motions to dismiss implicate three distinct federal rules.
considering a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a court must accept as true
all material factual allegations in the complaint, but is
"not to draw inferences from the complaint favorable to
plaintiffs." See J.S. ex rel. N.S. v. Attica Cent.
Sch., 386 F.3d 107, 110 (2d Cir. 2004). A court
"may consider affidavits and other materials beyond the
pleadings to resolve the jurisdictional issue, but [a court]
may not rely on conclusory or hearsay statements contained in
the affidavits." Id. "The plaintiff bears
the burden of proving subject matter jurisdiction by a
preponderance of the evidence." McGowan v. United
States, 825 F.3d 118, 125-26 (2d Cir. 2016) (quoting
Aurecchione v. Schoolman Transp. Sys., Inc., 426
F.3d 635, 638 (2d Cir. 2005)). A court properly dismisses an
action under Rule 12(b)(1) if the court "lacks the
statutory or constitutional power to adjudicate it."
Cortlandt Street Recovery Corp. v. Hollas
Telecommns. S.A.R.L., 790 F.3d 411, 416-17 (2d Cir.
2015) (internal quotation omitted).
survive a motion to dismiss for failure to state a claim for
which relief can be granted under Rule 12(b)(6), a complaint
must plead "enough facts to state a claim to relief that
is plausible on its face." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
"Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it
'stops short of the line between possibility and
plausibility of entitlement to relief" Id.
(quoting Twombly, 550 U.S. at 557).
considering a motion to dismiss, a district court must
"accept all factual claims in the complaint as true,
and draw all reasonable inferences in the plaintiffs
favor." Lotes Co. v. Hon Hai Precision Indus.
Co., 753 F.3d 395, 403 (2d Cir. 2014) (quoting
Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d
106, 108 (2d Cir. 2010) (internal quotation marks omitted)).
However, this tenet is "inapplicable to legal
conclusions." Iqbal, 556 U.S. at 678.
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Id. "[R]ather, the
complaint's [f]actual allegations must be enough
to raise a right to relief above the speculative level,
i.e., enough to make the claim plausible."
Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d
Cir. 2010) (quoting Twombly, 550 U.S. at 555, 570)
(internal quotation marks omitted) (emphasis in Arista
Records). A complaint is properly dismissed where, as a
matter of law, "the allegations in [the] complaint,
however true, could not raise a claim of entitlement to
relief." Twombly, 550 U.S. at 558.
motion for judgment on the pleadings under Rule 12(c) is
governed by the same standard as a motion under Rule
12(b)(6). Ades & Berg Group Investors v. Breeden (In re
Ades & Berg Group Investors), 550 F.3d 240, 243 n.4 (2d
Cir. 2008) (citing Burnette v. Carothers, 192 F.3d
52, 56 (2d Cir. 1999)); see also United States Life Ins.
Co. v. Blum, No. 09 Civ. 9416, 2011 U.S. Dist. LEXIS
1531, at *10 (S.D.N.Y. Jan. 3, 2011). The court must accept a
plaintiff s factual allegations as true and draw all
reasonable inferences in the plaintiffs favor. Gonzalez
v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y. 2008);
see also Famous Horse Inc., 624 F.3d at 108. To
survive a motion for judgment on the pleadings, the complaint
must contain factual allegations amounting to "more than
an unadorned, the-defendant-unlawfully-harmed me accusation,
" Iqbal, 556 U.S. at 678, such that those
allegations, when accepted as true, "state a claim for
relief that is plausible on its face." South Cherry
Street LLC v. Hennessee Group LLC, 573 F.3d 98, 110 (2d
Cir. 2009) (emphasis in original).
the rule that "a court must accept as true all of the
allegations contained in a complaint" is
"inapplicable to legal conclusions, " even where,
as here, the plaintiff proceeds pro se. See Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting
Iqbal, 556 U.S. 662, 678 (2009)). And, in deciding a
motion for judgment on the pleadings, the Court may consider
"the complaint, the answer, [and] any written document
attached to them[.]" Roberts v. Babkiewicz, 582
F.3d 418, 419 (2d Cir. 2009); see also L-7 Designs, Inc.
v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011).
far from a model of clarity, Scroggins's Complaint
appears to allege claims against Fire Records and Conexion
for fraud, defamation, and copyright infringement; against
Renee for copyright infringement, fraud, and negligent and/or
intentional infliction of emotional distress; against ASCAP
for withholding of royalty payments (breach of contract); and
against UMG for copyright infringement, theft (conversion),
and negligent and/or intentional infliction of emotional
distress. Each defendant has moved for dismissal, on various
distinct grounds. The Court will address the motions by
Scroggins's Claims ...