Agnant v. Shakur

• Decision Date: 16 December 1998
• Docket Number: No. 97 Civ. 3424(MBM).,97 Civ. 3424(MBM).
• Citation: 30 F.Supp.2d 420
• Parties: Jacques AGNANT, Plaintiff, v. Tupac SHAKUR a/k/a "Makaveli," and/or the Estate of Tupac Shakur, Death Row Records/Interscope Records, Joshua's Dream, Interscope Pearl Music, Warner-Tamerlane Publishing Corp., Suge Publishing, Hurt-M-Bad, Tommy Daugherty and Lance Pierce, Defendants.
• Court: U.S. District Court — Southern District of New York

30 F.Supp.2d 420

Jacques AGNANT, Plaintiff, v. Tupac SHAKUR a/k/a "Makaveli," and/or the Estate of Tupac Shakur, Death Row Records/Interscope Records, Joshua's Dream, Interscope Pearl Music, Warner-Tamerlane Publishing Corp., Suge Publishing, Hurt-M-Bad, Tommy Daugherty and Lance Pierce, Defendants.

No. 97 Civ. 3424(MBM).

United States District Court, S.D. New York.

December 16, 1998.

Paul S. Brenner, New York City, for Plaintiff Jacques Agnant.

Kenneth G. Schwarz, William A. Zolla, Fischbein Badillo Wagner Harding, New York City, for Defendant Estate of Tupac Shakur.

Charles B. Ortner, Michael T. Mervis, Jared L. Gurfein, Paul, Hastings, Janofsky & Walker LLP, New York City, for Defendants Interscope Records, Interscope Pearl Music and Warner-Tamerlane Publishing Corp.

Stephen F. Huff, Tom J. Ferber, Pryor Cashman Sherman & Flynn, New York City, for Defendants Death Row Records and Suge Publishing.

OPINION AND ORDER

MUKASEY, District Judge.

This libel case, initially filed in Supreme Court, New York County, and removed here pursuant to 28 U.S.C. §§ 1332, 1441 (1994), arises from statements allegedly made about plaintiff, Jacques Agnant, in a rap song written and performed by the late Tupac Shakur. Plaintiff sues the Estate of Tupac Shakur (the "Shakur Estate"), Interscope Records, Interscope Pearl Music, Warner-Tamerlane Publishing Corp., Death Row Records, Inc. and Suge Publishing (collectively, the "Record Company defendants"), as well as other companies and individuals allegedly involved in the production of the song. The Record Company defendants move for judgment on the pleadings or, in the alternative, summary judgment. The Shakur Estate moves for summary judgment. For the reasons stated below, defendants' motions for summary judgment are granted, and the complaint is dismissed as to these defendants.

I.

The following relevant facts are viewed in the light most favorable to plaintiff.¹ Prior to his murder in September 1996, Tupac Shakur was a well-known and successful rap music artist. (Compl. ¶ 3; Gurfein Decl. Ex. C)² In late 1993, Shakur, plaintiff and a third man were arrested and indicted for sexually assaulting a woman in a New York City hotel. (Gurfein Decl. Ex. C, at 1) Thereafter, the charges against plaintiff were severed from those against Shakur, whose case went to trial in late 1994 and resulted in a conviction. (Compl. ¶ 16; Gurfein Decl. Ex. C, at 3, 6) Several months later, plaintiff pleaded guilty to lesser charges, for which he was sentenced to three years' probation and fined $1000. (Agnant Dep. at 15-16)³

In December 1996, an album was released, featuring Shakur under the posthumous alias "Makaveli," titled "The Don Killuminati: The 7 Day Theory." (Compl. ¶ 14; Gurfein Decl. ¶ 6, Ex. E) The album included a song titled "Against All Odds," which contained the following lyrics, as reprinted in the complaint:

... know that this be the realist [sic] shit I ever wrote ... Hoping my true mother fucker know this be the realist [sic] shit I ever wrote, I heard he was a light skin stockey with a Haitian accent jewelry fast cars and known for flashing listen while I take you back and lace this rap a real live tale about a snitch named Haitian Jack, knew he was working for the fed. Same crime different trial, Nigger picture what he said and did I mention promised to pay back to me Hinchman in due time. I knew you Bitch Nigger is listening the world is mine set me up wet me up niggers struck heard your guns bust but you tricks never shook me up. Touch one of mine or everything I owe I will destroy everything you touch. Play the game nigger all out warfare eye for eye last words to a bitch nigger why you lie, now you got to watch your back now watch your front now here we come gun shot to tut now you are stuck, fuck the rap game this is M.O.B. so believe me, we are enemies I go against all odds. I hope my true mother fuckers know this be the realist shit I ever wrote against all odds.

(Compl.¶ 15) To date, the album has sold approximately 7 million copies in the United States and 28 million copies worldwide. (Id. ¶ 14)

In his complaint, plaintiff alleges that the above lyrics refer to him and, as understood by the general public, state that he "was working as an undercover federal informant" against Shakur in relation to the rap artist's 1994 trial. (Id. ¶ 16) As a result of the lyrics, plaintiff alleges, he "has been unable to find employment commensurate with his training and experience, and has had his reputation destroyed in the community." (Id. ¶ 19) He seeks $200 million in compensatory damages as well as punitive damages. (Id. ¶ 20)

The allegations in the complaint notwithstanding, the evidence reveals that plaintiff is currently employed "in an executive capacity" at a record company called Undeas Entertainment ("Undeas"). (Rivera Aff. ¶ 1) In affidavits submitted in opposition to these motions, plaintiff and the president of Undeas, Lance Rivera, imply that plaintiff got his current job after the release of "The Don Killuminati: The 7 Day Theory," and only then because plaintiff and Rivera were "childhood friends." (Id. ¶¶ 2, 4; Agnant Aff. ¶ 9) In his pretrial deposition, taken on October 17, 1997, however, plaintiff testified that he had worked continuously for Undeas, as "Director of A & R," beginning in late 1994 or early 1995. (Agnant Dep. at 51-52, 111) Plaintiff testified that, in 1995 and 1996, he had received approximately $120,000 in compensation from Undeas, and that he expected to receive a similar amount, if not more, for 1997. (Id. at 52, 57-60, 74) Moreover, plaintiff acknowledged that his employment contract prohibited him from seeking income from any source other than Undeas and that, as of the time of his deposition, he had not searched for any additional work or income. (Id. at 54, 58, 60) Plaintiff conceded also that his employer had not disciplined or threatened him in the period following the release of Shakur's album. (Id. at 61) Finally, he testified that he was happy working for Undeas and had no intention of seeking other employment. (Id. at 60)

II.

As noted, the Record Company defendants move for judgment on the pleadings or, in the alternative, for summary judgment. Because the Shakur Estate moves solely for summary judgment, and because I have considered materials outside the pleadings, see Fed.R.Civ.P. 12(c), I will treat both motions as motions for summary judgment.

Summary judgment is mandated when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, "the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party." Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir.1994). Nevertheless, Rule 56 jurisprudence is clear in "provid[ing] that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party, therefore, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Conclusory allegations will not suffice to create a genuine issue." Delaware & Hudson Ry. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990).

III.

In their respective motion papers, defendants raise four arguments in favor of summary judgment: first, that the statements at issue are not capable of a defamatory meaning; second, that even if the statements are capable of a defamatory meaning, the statements are not libelous per se and plaintiff has failed to plead and cannot prove special damages, as required; third, that the statements are protected opinion; and fourth, that plaintiff is a public figure and the statements implicate a matter of public concern, requiring plaintiff to plead and prove actual malice or gross irresponsibility, which he has not done and cannot do. The Shakur Estate raises as an additional argument that plaintiff failed to comply with the necessary provisions of California and New York probate law regarding claims against estates. Because I conclude that summary judgment is warranted on the basis of defendants' first two arguments, it is unnecessary for me to consider the others.

Libel law provides redress for injuries to a person's reputation caused by statements which tend to "expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society." Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 587, 665 N.E.2d 153 (1996) (internal quotation marks and citations omitted); accord Levin v. McPhee, 119 F.3d 189, 195 (2d Cir.1997). Although it is the jury's province to determine whether the plaintiff has actually been defamed, a threshold issue for resolution by the court is "whether the statement alleged to have caused plaintiff an injury is reasonably susceptible to the defamatory meaning imputed to it." Levin, 119 F.3d at 195 (citing James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 874, 353 N.E.2d 834 (1976)); see also Aronson v. Wiersma, 65 N.Y.2d 592, 594, 493 N.Y.S.2d 1006, 1007, 483 N.E.2d 1138 (1985). The court's threshold inquiry is guided by both the meaning of the words as they would commonly be understood and the context in which they appear. See Levin, 119 F.3d at 195.

Here, plaintiff alleges that Shakur's song "Against All Odds" falsely accuses him of "working as an undercover federal...