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Bryant v. AB Droit Audiovisuels

United States District Court, S.D. New York

June 2, 2017

ANNE BRYANT, Plaintiff,
v.
AB DROIT AUDIOVISUELS, et al., Defendants.

          OPINION AND ORDER

          HENRY PITMAN United States Magistrate Judge

         I. Introduction

         Plaintiff has moved pursuant to 28 U.S.C. § 1927 for sanctions against Gloria C. Phares, Esq., counsel for Sunbow Productions, Inc. and several other defendants in this action[1]("the Sunbow Defendants") (see Motion for Sanctions, dated Jan. 11, 2016 (Docket Item ("D.I.") 115) ("PI. Sanctions Motion"); see also Motion for Sanctions, dated Jan. 11, 2016 (D.I. 122)[2]) . Plaintiff argues that Phares should be sanctioned because she has submitted an allegedly fraudulent contract in support of a motion to dismiss the complaint that the Sunbow Defendants filed in 2008 (PI. Sanctions Motion at 2, citing Declaration of Gloria C. Phares in Supp. of Sunbow Defendants' Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6), dated Jan. 4, 2008 (D.I. 32), Ex. 18). By her motion, plaintiff seeks denial of the Sunbow Defendants' motion to dismiss, an Order precluding Phares from relying on the allegedly fraudulent agreement in subsequent filings and an award of attorney's fees incurred in responding to the dismissal motion (PI. Sanctions Motion at 10-11).

         To the extent plaintiff is seeking relief other than attorney's fees, her sanctions motion is now moot. The 2008 motion to dismiss was denied on March 30, 2009 and is no longer pending (Order, dated Mar. 30, 2009 (D.I. 67)). Earlier this year, the Honorable Paul A. Crotty, United States District Judge, "so ordered" plaintiff's requests to dismiss voluntarily each of the Sunbow Defendants from this action without prejudice (see Orders, dated March 21, 2017, March 22, 2017 and May 12, 2017 (D.I. 152, 155, 183)). In light of Judge Crotty's recent Orders, the second form of relief sought in plaintiff's motion -- an Order precluding the Sunbow Defendants from relying on the allegedly fraudulent agreement --is also moot because no claims against the Sunbow Defendants remain.[3]

         The third form of relief sought by plaintiff -- attorney's fees -- stands on a different footing. Because they are collateral to the merits of a case, a motion for sanctions survives the dismissal of an action. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990); accord DiPaolo v. Moran, 277 F.Supp.2d 528, 532 (E.D. Pa. 2003). Thus, plaintiffs sanctions motions require resolution notwithstanding the dismissal of the claims against the Sunbow Defendants.[4]

         II. Facts

         Plaintiff is a composer who has written music for defendants (Complaint, dated July 13, 2007 (D.I. 1) ("Complaint") ¶ 1). In 2002, plaintiff filed a case against Sunbow Productions, Inc. ("Sunbow") in the Supreme Court of the State of New York, Rockland County, seeking damages for unpaid royalties for musical compositions ("State Court Action") (see Declaration of Christopher M. Strong, Esq., dated Jan. 28, 2016 ("Strong Decl.") (D.I. 117), Ex. B (Bryant v. Broadcast Music, Inc., Index Nos. 5192/00, 2821/02, Decision After Trial (Sup. Ct. Rockland Cty. July 2, 2014) (Garvey, J.) ("State Court Post-Trial Decision")) at 3). In the State Court Action, plaintiff initially alleged claims for unjust enrichment and constructive trust based on alleged oral agreements with Sunbow (State Court Post-Trial Decision at 3). However, in 2004, Sunbow, represented by Phares in the State Court Action, discovered a copy of the "Jem Agreement, " an apparent contract under which Sunbow hired plaintiff to compose songs for television shows produced by Sunbow (State Court Post-Trial Decision at 3-4).[5] When Sunbow first produced the Jem Agreement in the State Court Action, plaintiff denied that she had signed it, and the justice presiding over the case held a hearing on that issue (State Court Post-Trial Decision at 3-4). The justice in the State Court Action later concluded that plaintiff had, in fact, signed the Jem Agreement (State Court Post-Trial Decision at 3-4). Plaintiff and Sunbow thereafter agreed that their relationship was governed by the Jem Agreement. In fact, plaintiff affirmatively asserted that the Jem Agreement was valid, claiming that Sunbow was liable to plaintiff because it had breached the Jem Agreement (State Court Post-Trial Decision at 4). The State Court Action ultimately resulted in a finding that plaintiff has not proven that Sunbow breached the Jem Agreement that was affirmed by the Appellate Division. Bryant v. Broadcast Music, Inc., 143 A.D.3d 934, 935, 39 N.Y.S.3d 520, 521 (2d Dep't 2016). The Court of Appeals of New York recently denied plaintiff's motion for leave to appeal the appellate court's decision. See Bryant v. Broadcast Music, Inc., 2017-293, 2017 N.Y. Slip Op. 73077 (Table), 2017 WL 1842774 (May 9, 2017) .

         Plaintiff commenced this action on July 13, 2007, alleging that she was a "signatory" to the Jem Agreement, and that Sunbow breached the agreement by failing to pay her royalties for musical compositions; plaintiff expressly relied on the Jem Agreement and incorporated it by reference in her complaint (Complaint, ¶¶ 12, 79-87). Thus, from the outset of the case, plaintiff affirmatively relied on the Jem Agreement and made it part of the case. Notwithstanding plaintiff's reliance on the Jem Agreement, she now asserts that in August 2 012 an unidentified employee of the Internal Revenue Service ("IRS") informed her that "'Kinder & Bryant, Ltd.' was never formed" and that "'Kinder & Bryant, Ltd' never existed" (PI. Sanctions Motion at 5).[6] Plaintiff argues that because she signed the Jem Agreement as a member of a company that did not exist -- "Kinder & Bryant, Ltd." -- the Jem Agreement is fraudulent and unenforceable (PI. Sanctions Motion at 5 ("the JEM Agreement is a nullity, because the non-entity, 'Kinder & Bryant Ltd, ' did not have the capacity to act for Plaintiff Anne Bryant"); Pi. Reply Mem. at 2 (same)).

         Plaintiff argues that Phares knew or should have known that Kinder and Bryant, Ltd. did not exist and that the Jem Agreement was unenforceable when Sunbow first produced the Jem Agreement in the State Court Action in 2004 (PI. Sanctions Motion at 5-6; PI. Reply Mem. at 4). Plaintiff asserts that Phares engaged in sanctionable conduct by relying on the Jem Agreement in the State Court Action and in support of the Sunbow Defendants' 2008 motions to dismiss in this action (Pi. Sanctions Motion at 5-6, 10-11; PI. Reply Mem. at 4-5, 6-7). Plaintiff also alleges that Phares has cited to the Jem Agreement in order "to distract the Courts from serious issues that have been buried in the substratum" of this action and other litigations plaintiff has filed in federal and state court (PI. Sanctions Motion at 6) .[7]

         In their 2008 motion to dismiss plaintiff's Complaint, the Sunbow Defendants asserted that plaintiff's claims and the factual allegations underlying those claims are identical to those raised in the State Court Action and that plaintiff is precluded from proceeding with her claims in this case due to res judicata and collateral estoppel (see Mem. of Law in Supp. of Motion to Dismiss under Fed.R.Civ.P. 12(b)(6), dated Jan. 4, 2008 ("Sunbow Defs. Mot. to Dismiss") (D.I. 33) at 1-2). The Sunbow Defendants also argued that Sunbow's obligation to pay royalties to plaintiff was governed exclusively by the Jem Agreement (Sunbow Defs. Mot. to Dismiss at 1-2, 19). Plaintiff responded by arguing that the decision in the State Court Action did not preclude her claims in this action and that she was owed payments under the Jem Agreement; plaintiff never claimed in her opposition there was any defect in the Jem Agreement itself (Affidavit of Anne Bryant in Response to the January 9, 2009 Letter by Gloria Phares, Esq., Counsel for the Sunbow Defendants, sworn to Jan. 23, 2009 (D.I. 65) at 4). Thus, plaintiff's own response to the motion to dismiss acknowledged the validity of the Jem Agreement. On March 30, 2009, the Honorable Sidney H. Stein, United States District Judge, to whom this matter was previously assigned, issued an Order denying the motions to dismiss without prejudice and staying this matter pending the resolution of the State Court Action (Order, dated Mar. 30, 2009 (D.I. 67).

         Phares and Sunbow argue that plaintiff's motion for sanctions should be denied because the Jem Agreement is a valid enforceable contract, and that, even if the legal status of Kinder & Bryant, Ltd. were relevant to the viability of the agreement, there is no evidence that Phares was aware of Kinder & Bryant, Ltd.'s allegedly defective legal status prior to plaintiff's raising the issue in the State Court Action in 2012 (Mem. of Law of Def. Sunbow Productions Inc. and Gloria C. Phares Opposing Anne Bryant's Motion for Sanctions, dated Jan. 29, 2016 (D.I. 117) at 1; see also Hasbro Defs. Mem. in Opposition to Plaintiff's Motion for Sanctions, dated Feb. 4, 2016 (D.I. 118)).

         III. Analysis

         A. Law Governing Motion for

         Sanctions under 28 ...


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