Fharmacy Records v. Nassar
| Decision Date | 15 August 2008 |
| Docket Number | No. 05-72126.,05-72126. |
| Citation | 572 F.Supp.2d 869 |
| Parties | FHARMACY RECORDS a/k/a, Fharmacy Records Production Co., Fharm I Publishing Company, Shelton Rivers, Plaintiffs, v. Salaam NASSAR, Curtis Jackson, Darrin Dean, Def Jam Recording, Ruff Ryders, Janice Combs Publishing, Universal Music Publishing, Universal Music & Video Distribution Corporation, Emi April, Inc., Soo Soos Sweet Swisher Music, John Doe, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Gregory J. Reed, Stephanie L. Hammonds, Gregory J. Reed Assoc., Detroit, MI, for Plaintiffs.
Leslie C. Schefman, Schlussel and Schefman, Birmingham, MI, Deborah J. Swedlow, J. Michael Huget, Butzel Long, Ann Arbor, MI, Daniel D. Quick, Michael D. Socha, Dickinson Wright, Bloomfield Hills, MI, for Defendants.
Presently before the Court are seven post-judgment motions in this copyright sampling case. Six of the motions were filed by the plaintiffs at various times following entry of this Court's opinion and order granting the defendants summary judgment and judgment dismissing the case on March 31, 2008. One of the motions was filed by the defendants and seeks attorney's fees and costs. The plaintiffs' motions all request relief in one form or another from the Court's judgment of dismissal, except for one motion which asks for attorney's fees. However, the plaintiffs also apparently seek the disqualification of the undersigned, although they have not filed a motion requesting that relief. Instead, the disqualification request is found in the plaintiffs' response to the defendants' attorney's fees motion. Treating the response as a motion to disqualify the undersigned judge, the Court finds no grounds that favor disqualification. The Court also finds no basis to grant relief from its judgment of dismissal, and the plaintiffs' motion for attorney's fees is frivolous. The defendants have shown that they may be entitled to attorney's fees under the Copyright Act and as a result of discovery abuse by the plaintiffs. However, the defendants have not made a proper showing that the amount of fees and costs they seek is reasonable. Therefore, the Court will decline to disqualify itself, deny the plaintiffs' motions for relief from the order of dismissal, deny the plaintiffs' motion for attorney's fees, and refer the defendants' motion for attorney's fees to Magistrate Judge Donald A. Sheer for a report and recommendation.
The facts of this case are set forth in detail in the Court's order granting the defendants' motion for summary judgment and motion to dismiss, and they need not be repeated here. In brief summary, the plaintiffs brought suit alleging that defendant Salaam Nassar stole a rhythmic beat created by plaintiff Shelton Rivers, a.k.a. the "Ess Man." After Rivers made the beat, the Fharmacy plaintiffs acquired an interest in it and secured copyright protection. Later on, rap artist DMX released a song with a strikingly similar beat entitled "Shot Down." Many of the defendants were involved in the production of "Shot Down" and sales of the album on which it appeared. When the album went platinum, the plaintiffs sued. Their theory was that Nassar had access to Rivers's equipment, and he simply lifted the beat when Rivers wasn't looking. The Court found that the plaintiffs in their complaint alleged unlawful "sampling" of a sound recording in violation of 17 U.S.C. § 114(b), the plaintiffs were unable to produce any evidence that the protected work and the accused work were identical, and the defendants were entitled to summary judgment on the merits of the claim. The Court also documented the disturbing conduct of the plaintiffs and their attorneys in the manipulation and destruction of evidence in the case, which resulted in a finding that dismissal was an appropriate sanction.
In determining that dismissal was an appropriate sanction, the Court discussed the factors outlined in Regional Refuse Sys. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir.1988), and concluded as follows:
Looking to Regional Refuse and progeny for guidance, the first factor is whether the misconduct by the plaintiffs and their counsel results from "willfulness, bad faith, or fault." Reyes, 307 F.3d at 458. In the present case, this factor is plainly satisfied. Although some of the events in this litigation might be excused as resulting from mere negligence when viewed in isolation (e.g., Mr. Reed's loss of the CD allegedly furnished by Seaton), considering them in the aggregate invariably leads to the conclusion that the plaintiffs and their attorney have conducted a campaign of fraud. The list of abuses is extensive. In addition to Mr. Reed's loss of the "original" CD furnished by Seaton, Rivers's zip disk was intentionally wiped of data; Rivers lost the tape recording allegedly containing Nassar's confession; the Fharmacy computer that was allegedly used in 2001 did not even exist until 2003; that computer contained files that were intentionally backdated; the 2001 assignment document referenced entities that were not even formed until 2004; the original assignment documents were lost; the computer that was used to draft such documents was thrown away; and the R.J. Rice hard drive contained file dates that could not be verified. And this list does not even include the material inconsistencies in the plaintiffs' testimony, late disclosure of evidence, misrepresentation of evidence, and prevarications by Mr. Reed in his representations to opposing counsel. If this is not bad-faith litigation, nothing is.
The second factor is whether the defendants have been prejudiced by the plaintiffs' misconduct, Reyes, 307 F.3d at 458, and that element too has been satisfied. The plaintiffs seem to think that dismissal would just be a windfall to the defendants because they have come forward with relatively little evidence in support of their version of events. However, the plaintiffs forget that the burden of proof lies with them, and the defendants have a right to test the evidence brought against them. Due to the conduct of the plaintiffs and their attorney, the defendants' right to rebut the plaintiffs' allegations has meant little because the evidence has either been lost, tampered with, or irretrievably compromised. There is simply no way that this case can go forward.
The third factor under Regional Refuse is whether the plaintiffs were "warned that failure to cooperate could lead to dismissal." Reyes, 307 F.3d at 458. This is the one factor that does not clearly militate in favor of dismissal but, on balance, it is not dispositive. There is nothing in the record showing that the plaintiffs were warned by a judicial officer that dismissal was a possibility. However, this factor seems less relevant in a case such as this, where the conduct at issue is not merely contestable, but in contravention of basic notions of fairness and professional responsibility. A party does not need formal notice to know that spoliation of evidence and misrepresentations may lead to dismissal.
The fourth and final factor is whether less drastic sanctions were imposed or considered before resorting to dismissal. Reyes, 307 F.3d at 458. This factor reflects the concept that dismissal is a sanction of last resort and should be issued only in extreme situations. See Regional Refuse, 842 F.2d at 154. This factor also favors dismissal of the instant case because lesser sanctions were imposed for earlier discovery violations, see Order Granting Mot. for Partial Dismissal and Sanctions [dkt # 55], and anything less than dismissal would be futile. That is, the evidence in this case has been so tainted that pushing onward to a decision on the merits (save granting summary judgment in favor of the defendants, as explained above) would be practically impossible.
Fharmacy Records v. Nassar, 248 F.R.D. 507, 530 (E.D.Mich.2008).
Thereafter, the plaintiffs filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b) and a motion for reconsideration on April 14, 2008. Pls.' Mots. for Relief and Recon. [dkt # s 250, 253]. The plaintiffs also filed a motion for costs and attorney's fees under 28 U.S.C. § 1927 "for vexatiously multiplying these proceedings unreasonably." Pls.' Mot. for Att. Fees [dkt # 251]. The defendants filed their own motion for attorneys' fees shortly thereafter. Defs.' Mot. for Att. Fees [dkt # 252]. On August 8, 2008, the plaintiffs filed another "expedited" motion for relief under Rule 60(b). Pls.' Mot. for Relief [dkt # 268]. On August 11, they filed yet another. Pls.' Mot. for Relief [dkt # 269]. On August 12, they filed a "motion for ruling on their request for recusal and four pending motions for reconsideration and/or relief from judgment." Mot. for Ruling [dkt # 270].
As noted above, the plaintiffs filed a response to the defendants' motion for attorney's fees in which they stated that the undersigned judge should be disqualified for personal bias against the plaintiffs' attorneys. Although no formal motion seeking that relief was ever filed, the Court will construe the plaintiffs' response as such a motion and turn to it now.
The plaintiffs insist that the undersigned must disqualify himself and refer all postjudgment motions to another district judge under 28 U.S.C. §§ 455(a) and (b)(1) based upon a "personal bias against ... Gregory J. Reed arising out of [my] background and prior association as a practicing attorney with ... Clark Hill PLC." Resp. Br. [dkt # 257] at 2. The plaintiffs' reasoning goes like this: I was an attorney at the Clark Hill law firm...
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