Germaine Music v. Universal Songs of Polygram

• Court: U.S. District Court — District of Nevada
• Writing for the Court: Pro
• Citation: Germaine Music v. Universal Songs of Polygram, 275 F.Supp.2d 1288 (D. Nev. 2003)
• Decision Date: 25 July 2003
• Docket Number: No. CV-S-03-0047 PMP(LRL).,CV-S-03-0047 PMP(LRL).
• Parties: GERMAINE MUSIC, et al, Plaintiff, v. UNIVERSAL SONGS OF POLYGRAM, a/k/a Polygram Records, UMG, and BMI (Broadcast Music, Inc.), Defendants.

275 F.Supp.2d 1288

GERMAINE MUSIC, et al, Plaintiff, v. UNIVERSAL SONGS OF POLYGRAM, a/k/a Polygram Records, UMG, and BMI (Broadcast Music, Inc.), Defendants.

No. CV-S-03-0047 PMP(LRL).

United States District Court, D. Nevada.

July 25, 2003.

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General Crook, North Las Vegas, NV, pro se.

Germaine Music, North Las Vegas, NV, pro se.

Vincent C. Ferenbach, Lionel, Sawyer & Collins, Kenneth R. Myers, Lionel, Sawyer & Collins, Las Vegas, NV, Jeffrey D. Goldman, Mitchell, Silberberg & Knupp, Nicole L. Harris, Mitchell, Silberberg & Knupp, Los Angeles, CA, Mark A. Hutchison, Hutchison & Steffen, Luke K. Rath, Hutchison & Steffen, Kevin A. Sprenz, Hutchison & Steffen, Las Vegas, NV, Jeffrey D. Goldman, Mitchell, Silberberg & Knupp, Nicole L. Harris, Mitchell, Silberberg & Knupp, Los Angeles, CA, Mark A. Hutchison, Hutchison & Steffen, Luke K. Rath, Hutchison & Steffen, Kevin A. Sprenz, Hutchison & Steffen, Las Vegas, NV, for Defendants.

ORDER

PRO, Chief Judge.

Presently before this Court are several motions. First, Defendant Broadcast Music, Inc. ("BMI") filed a Motion to Dismiss Plaintiff's Claims Against Broadcast Music, Inc. (pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)), and Alternative Motion to Stay Action and Compel Arbitration (pursuant to 9 U.S.C. § 3) (Doc. # 15) on May 1, 2003. BMI filed a Reply Memorandum of Points and Authorities in Further Support of BMI's Motion to Dismiss (Doc. # 22) on May 13, 2003. Plaintiff General Crook ("Crook") filed a Response to BMI's Reply Memorandum of Points and Authorities (Doc. # 23) on May 13, 2003. Crook filed an Opposition to Motion to Dismiss (Doc. # 25) on May 15, 2003.¹ BMI filed a Reply in Support of Defendant BMI's Motion to Dismiss or Alternatively to Compel Arbitration (Doc. # 31) on May 27, 2003. Crook filed another Opposition to Motion to Dismiss [hereinafter referred to as "Second Opposition"²] (Doc. # 32) on May 23, 2003.³

Second, Crook filed a Motion to Strike UMG [Recordings, Inc.]'s Answer to Amended Complaint (Doc. # 20) on May 8, 2003. UMG Recordings, Inc. ("UMG") filed an Opposition to Plaintiff's Motion to Strike Defendant UMG Recordings, Inc.'s (erroneously sued as Universal Songs of Polygram, A/K/A Polygram Records) Answer to Amended Complaint. (Doc. # 27) on May 20, 2003. Crook filed an Opposition to Defendants [sic] Response Regarding Plaintiffs [sic] Motion to Strike UMG [sic] Answer to Amended Complaint (Doc. # 30) on May 22, 2003.

Crook also filed a Motion for Summary Judgment (Doc. # 24) on May 13, 2003. UMG filed a Motion for Enlargement of Time to Oppose Plaintiff's Motion for Summary Judgment (Doc. # 26) on May 19, 2003. Crook filed an Opposition to Motion for Enlargement of Time to Oppose Plaintiffs [sic] Motion for Summary Judgment (Doc. # 29), as well as an Amended Motion for Summary Judgment (Doc. # 28) on May 21, 2003.⁴ BMI filed an Opposition to Plaintiff's Motion for Summary Judgment; Opposition to Plaintiff's Amended Motion for Summary Judgment; and Motion to Strike Plaintiff's Amended Motion for Summary Judgment (Docs. # 33 & 34) on May 28, 2003. As to the Motion to Strike, Crook filed no Opposition, and BMI filed no Reply. Crook filed a Reply to Defendant BMI's Opposition to Plaintiffs [sic] Amended Motion for Summary Judgment (Doc. # 35) on May 29, 2003. UMG filed a Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment (Doc. # 36) on June 3, 2003.⁵ UMG also filed a request for summary judgment (Doc. # 36) on June 3, 2003.⁶ Crook filed a Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment and Opposition to Defendant's Request for Summary Judgment (Doc. # 39) on June 13, 2003. Crook filed Supplemental Pleadings for Defendant BMI of Previous Filings in Opposition to Defendant UMG's Motion for Enlargement of Time and Motion to Strike UMG's Answer to Amended Complaint (Doc. # 41) on June 23, 2003.

BMI also filed a Motion for Sanctions (Doc. # 37) on June 9, 2003. Crook filed no Opposition, and BMI filed no Reply.⁷

Finally, Crook filed a Motion for Leave to File an Amended Pleading in Opposition to BMI's Motion to Dismiss or Alternatively to Compel Arbitration (Doc. # 40) on June 16, 2003. BMI filed no Opposition, and Crook filed no Reply.⁸

I. BACKGROUND

Crook alleges that he owns and does business under the name "Germaine Music." (Crook's Resp. to BMI's Reply Mem. of P. & A. at 3; Am. Compl. at 2.) Germaine Music allegedly owns copyrights to twenty-seven songs. (Am. Compl. at 3.) Crook contends that the Chi-Lites performed and recorded Crook's copyrighted song, "Message to the World," on their album, "Happy Being Lonely." (Am. Compl. at 8.) The Chi-Lites allegedly had a recording agreement with UMG's predecessor which recorded the album.⁹ (UMG's P. & A. in Opp'n to Mot. for Summ. J. at 3.) Crook allegedly has a "Mechanical Licensing Agreement"¹⁰ ("UMG Agreement") with UMG. (Am. Compl. at 5.)

BMI, a nonprofit corporation with its principal place of business in New York City, "undertakes the responsibility to collect performance royalties on the writers' and publishers' behalf and to distribute the monies so collected" after deducting a portion for operating expenses.¹¹ (Mot. to Dismiss at 3.) Crook allegedly signed a standard contract with BMI ("BMI Contract") that gave BMI the right to license the public performance rights of the musical compositions at issue and to collect royalties on Crook's behalf. (Id. at 4.) The BMI Contract contained an arbitration clause. (Id.)

Crook alleges that BMI and UMG infringed upon his copyrights by "annexing" twenty-seven titles without paying him. (Am. Compl. at 3.) Crook further alleges that BMI paid royalties that BMI owed Crook to UMG, which was acting under the name "Donovan Germaine Music." (Am. Compl. at 3.) In his Amended Complaint, Crook includes causes of action against BMI and UMG for copyright infringement, breach of contract, and theft by deception.

II. BMI'S MOTION TO DISMISS

A. LEGAL STANDARD¹²

In considering "a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998) (citation omitted). However, the court does not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in plaintiff's complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994). There is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) (citation omitted). "`The issue is not whether a plaintiff will ultimately prevail but whether [he] is entitled to offer evidence in support of the claims.'" Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Consequently, the court should not grant a motion to dismiss "for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Hicks v. Small, 69 F.3d 967, 969 (9th Cir.1995).

The liberal rules of notice pleading set forth in the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts supporting his claim. See Fed.R.Civ.P. 8; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). All the Rules require is "`a short and plain statement'" that adequately "`give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992 (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99). Therefore, a plaintiff merely must plead sufficiently to "establish a basis for judgment against the defendant." Yamaguchi v. United States Dep't of the Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997) (citations omitted). Further, a claim is sufficient if it shows that the plaintiff is entitled to any relief which the court can grant, even if the complaint asserts the wrong legal theory or asks for improper relief. See United States v. Howell, 318 F.2d 162, 166 (9th Cir.1963).

B. DISCUSSION

BMI seeks to dismiss Crook's claims against it pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, to stay the action and compel arbitration pursuant to 9 U.S.C. § 3. BMI claims that Crook's allegations comprise a standard breach of contract action. (Mot. to Dismiss at 3.) BMI further claims that the arbitration clause in the BMI Contract covers this breach of contract action. According to the BMI Contract:

All disputes of any kind, nature or description whatsoever arising in connection with the terms and conditions of this agreement, or arising out of the performance thereof, or based upon an alleged breach thereof, shall be submitted to arbitration in the City, County and State of New York under the then prevailing rules of the American Arbitration Association by an arbitrator or arbitrators . . . .

(Id. at 4.) BMI states that mandatory arbitration is proper because Crook's "claims against BMI are plainly `arising out of, or relating to' the Crook Agreement, which deals with the licensing of public performance rights and the collection of performance royalties." (Id. at 5 (quoting the BMI Contract).)

Crook maintains that this action is not an ordinary breach of contract action. (Sec. Opp'n at 2.) Crook explicitly lists three "counts" in his Complaint: copyright infringement, breach of contract, and theft by deception. (Am.Compl.) However, the Ninth Circuit construes pleadings liberally in favor of pro se litigants. Ghazali v....