Broad. Music, Inc. v. 3 Lanza LLC
| Decision Date | 04 January 2021 |
| Docket Number | 2:19-cv-2637 (DRH) (AKT) |
| Parties | BROADCAST MUSIC, INC.; CONDUCIVE MUSIC; SPIRIT ONE MUSIC, a division of SPIRIT MUSIC GROUP INC.; EMBASSY MUSIC CORPORATION; SONY/ATV SONGS LLC; THE BERNARD EDWARDS COMPANY LLC; STONE DIAMOND MUSIC CORP.; and WARNER-TAMERLANE PUBLISHING CORP., Plaintiffs, v. 3 LANZA LLC d/b/a RISTEGIO'S; RICHARD LANZA; JOSEPH LANZA; and STEVEN LANZA, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
One Pennsylvania Plaza, 37th Floor
New York, NY 10119
By: Mark S. Sidoti, Esq.
J. Brugh Lower, Esq.
Erik A. Sackstein, Esq.
P.O. Box 436
16 Princess Tree Court
Port Jefferson, NY 11777
INTRODUCTION
The captioned Plaintiffs commenced this action against 3 Lanza LLC d/b/a Ristegio's, Richard Lanza, Joseph Lanza, and Steven Lanza ("Defendants") pursuant to the United States Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq. (the "Copyright Act"), to recover damages and to obtain an injunction as a result of Defendants' copyright infringement. Presently before the Court is Plaintiffs' motion for summary judgment. For the reasons set forth below, the motion is GRANTED.
Plaintiff Broadcast Music, Inc. ("BMI") licenses the right to publicly perform the copyrighted music of Plaintiffs Conducive Music, Spirit One Music, a division of Spirit Music Group Inc., Embassy Corporation, SONY/ATV Songs LLC, The Bernard Edwards Company LLC, Stone Diamond Music Corporation, and Warner-Tamerlane Publishing Corporation. (Pls. Local R. 56.1 Statement ("Pls. 56.1") ¶¶ 16-19[DE 29-2]). Defendants own and operate Ristegio's, a restaurant that features performances of live and recorded music. (Id. ¶¶ 1-2, 7-12).
In August 2017, BMI attempted to enter negotiations with Defendants regarding a public performance license for the music in BMI's repertoire. (Id. ¶¶ 3-4; Ex. B to Decl. of Brian Mullaney ("Mullaney Decl.") [DE 29-4]). Over the course of several months, BMI sent twenty-three written communications and made twenty-four phone calls, initially warning Defendants of their need for a license and later demanding Defendants cease and desist all public performances of BMI's content. (Pls. 56.1 ¶¶ 3-4). BMI never granted Defendants a license. (Id. ¶¶ 5, 15, 21).
On the night of September 29, 2018, BMI sent a music researcher to investigate whether Ristegio's was putting on public performances of BMI's music. (Id. ¶¶ 13-15; Mullaney Decl. ¶ 13). The researcher prepared a written report and an audio recording, both of which enabled BMI to ascertain that five of its works were publicly performed that night. . All five works were performed without a license. (Pls. 56.1 ¶¶ 14-15, 21).
Defendants have continued to publicly perform music in BMI's repertoire without a license. (Id. ¶¶ 5, 21, 22; Supp. Decl. of J. Brugh Lower ("Supp. Lower Decl.") ¶ 2 [DE 29-20]; see also Pls. Reply at 6 [DE 29-19]). BMI calculates the licensefees from August 2017 to March 2020 would have cost Defendants $15,875.00. (Pls. 56.1 ¶ 24). Nevertheless, Defendants remain without a license. (Id. ¶ 21).
Plaintiffs filed their Complaint on May 3, 2019. [DE 1]. Following discovery—which included Defendants failing to appear at settlement conference, failing to serve Rule 26(a) initial disclosures, and failing to fully respond to discovery requests, including the RFAs, see Order ¶ 3 [DE 26]—Plaintiffs moved for summary judgment on May 15, 2020. See Declaration of J. Brugh Lower ("Lower Decl.") ¶¶ 2-4, 6 [DE 29-10]. In opposition, Defendants submit two unsworn declarations, one from Defendant Steven Lanza and one from Defendants' counsel.
Summary judgment, pursuant to Rule 56, is appropriate only where the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The relevant governing law in each case determines which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When making this determination, a court must view all facts "in the light most favorable" to the non-movant, Tolan v. Cotton, 572 U.S. 650, 656-57 (2014), and "resolve all ambiguities and draw all permissible factual inferences in favor of the [non-movant]," Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). Thus, "[s]ummary judgment isappropriate [only] where the record taken as a whole could not lead a rational trier of fact to find for the [non-movant]." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)) (internal quotation marks omitted).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts demonstrating that there is a genuine dispute of material fact to be tried. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The non-movant must present more than a "scintilla of evidence," Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting Matsushita, 475 U.S. at 586-87), and "may not rely on conclusory allegations or unsubstantiated speculation," id. (quoting FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)).
The district court considering a summary judgment motion must also be "mindful . . . of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the "evidentiary burdens that the respective parties will bear at trial guide district courts in their determination[s] of summary judgment motions," Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). "[W]here the [non-movant] will bear the burden of proof on an issue at trial, the moving party may satisfy its burden by pointing to an absence of evidence to support an essential element of the [non-movant's] case." Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir.2014) (quoting Brady, 863 F.2d at 210-11) (internal quotation marks omitted). Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish his claim, the burden shifts to the non-movant to offer "persuasive evidence that his claim is not 'implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587). "[A] complete failure of proof concerning an essential element of the [non-movant's] case necessarily renders all other facts immaterial." Crawford, 758 F.3d at 486 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Defendants have not submitted a brief in opposition to Plaintiffs' motion nor a Rule 56.1 statement contesting Plaintiffs' statement. See Pls. Reply at 1; see also [DE 29-17, 29-18]. Where "a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." Fed. R. Civ. P. 56(e). Stated another way, the "failure to respond [to the movant's 56.1 statement] results in a grant of summary judgment once the court assures itself that Rule 56's other requirements have been met." T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (citing Millus v. D'Angelo, 224 F.3d 137, 138 (2d Cir. 2000)). Before considering whether to do so, the Court will address what Defendants did submit.
Defendant's response consists solely of two unsworn declarations from Defendant Steven Lanza and Defendants' counsel Eric A. Sackstein. See Decl. ofSteven Lanza ("Lanza Decl.") [DE 29-18]; Decl. of Eric A. Sackstein ("Sackstein Decl.") [DE 29-17]. These declarations are of questionable value as they do not cite to the record nor provide much in the way of legal argument. See Indus. Quick Search, Inc. v. Miller, Rosado & Algois, LLP, 2018 WL 264111, at 1 n.4 (S.D.N.Y. Jan. 2, 2018).
Additionally, and "[a]lthough formal affidavits are not required to raise a genuine dispute of material fact," Defendants' statements nevertheless fail to conform with 28 U.S.C. § 1746, which requires a declarant to swear the statements are made "under penalty of perjury." Monclova v. City of New York, 726 Fed. App'x 83, 84 (2d Cir. 2018) (citing Fed. R. Civ. P. 56(c), cmt. to 2010 amendment). Because the "[i]nclusion of the language 'under penalty of perjury' is an integral requirement of the statute for the very reason that it impresses upon the declarant the specific punishment to which he or she is subjected for certifying to false statements," the Second Circuit has held "that 28 U.S.C. § 1746 requires that a certification of the truth of a matter be expressly made under penalty of perjury." In re World Trade Ctr. Disaster Site Litig., 722 F.3d 483, 488 (2d Cir. 2013). Without this language, the declarations are inadmissible evidence and not considered on summary judgment. See LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65 (2d Cir. 1999) (); Raskin v. Wyatt Co., 125 F.3d 55, 56 (2d Cir. 1997) (...
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