Kelly v. Roker
| Decision Date | 04 June 2014 |
| Docket Number | No. 11-cv-05822 JSW (NC),11-cv-05822 JSW (NC) |
| Parties | LISA SIMONE KELLY, duly appointed Administrator of the Estate of Nina Simone, Plaintiff, v. WALLY ROKER, an individual, and d/b/a ICU ENT. DIST., d/b/a WALLY ROKER MUSIC; ANDY STROUD, INC.; and ANDREW B. STROUD, Defendants. ANDY STROUD, INC., Counterclaimant, v. LISA SIMONE KELLY, duly appointed Administrator of the Estate of Nina Simone, Counter-Defendant. |
| Court | U.S. District Court — Northern District of California |
This action is one of four cases pending before the Court involving disputes regarding the ownership rights to recordings by the late jazz singer Nina Simone. In this case, the Estate of Nina Simone brings claims arising out of the alleged fraudulent conveyance by Nina Simone's former husband and manager, Andrew B. Stroud, and AndyStroud, Inc. ("ASI") of the Nina Simone materials and recordings subject to the pending Brown v. Stroud litigation to a third party. After the third party defaulted and the District Court sanctioned the Stroud parties by entering default against them, the Simone Estate filed a motion for default judgment that was referred for report and recommendation to the undersigned Magistrate Judge. The undersigned RECOMMENDS to the District Court to GRANT IN PART AND DENY IN PART the motion for default judgment.
On October 5, 2007, Andrew B. Stroud and Stroud Productions and Enterprises, Inc. ("SPE") commenced an action against defendants Castle Rock Entertainment, Inc., Warner Bros. Entertainment Inc., and Warner Independent Pictures, Inc. in the Southern District of New York, No. 07-cv-08638 ("Stroud v. Castle Rock"). Dkt. No. 105 at 2, 4-12, No. 09-cv-03796 JSW. In that action, Andrew B. Stroud and SPE claim that they own the song recording, including the copyright therein, embodying the performance by Nina Simone of the composition titled "Just in Time." The complaint alleges that the copyright filed for by Andrew B. Stroud and SPE in connection with "Just in Time" is titled "Nina Simone Sings Billie Holiday" and was filed with the U.S. Copyright Office on or about January 22, 1973. Id. at 7. The complaint further alleges that Andrew B. Stroud was Nina Simone's producer at the time Nina Simone gave the subject performance of the song, "Just in Time," and that a recording of the performance was maintained by Andrew B. Stroud. Id. at 7-8. Andrew B. Stroud and SPE allege that several years before filing the Stroud v. Castle Rock action, they licensed "Just in Time" for a limited period, but that those licenses have expired and all rights are held by them. Id. at 8.
Andrew B. Stroud and SPE claim that Castle Rock Entertainment, Inc., Warner Bros. Entertainment Inc., and Warner Independent Pictures, Inc. used "Just in Time" in the motion picture titled "Before Sunset" and the accompanying soundtrack without entering into any license agreement for the subject sound recording with Andrew B. Stroud and SPE and continue to commercially exploit the film. Id. at 8-9. The complaint asserts twocauses of action: "for infringement of copyright arising under the copyright laws of the United States, Title 17 of the United States Code and for unfair competition under § 43 (a) of the Lanham Act (15 U.S.C. § 1125(a))." Id. at 6.
On May 7, 2008, Steven Ames Brown filed a complaint against Andrew B. Stroud and SPE in this Court, seeking declaratory relief regarding the ownership of certain Nina Simone recordings ("Brown v. Stroud"). Dkt. No. 1 at 1, No. 08-cv-02348 JSW. In his operative, first amended complaint, Brown alleges that, by virtue of a written contract he entered into on July 30, 1990, with Nina Simone, he obtained a 40% ownership interest in approximately 104 sound recordings ("the Masters") authored by Nina Simone. Dkt. No. 35 at 2, No. 08-cv-02348 JSW. According to the complaint, title to 52 of the Masters was disputed by various defendants in prior litigation based on chains of title that purportedly began with Andrew B. Stroud and/or SPE. Id. Brown alleges that the song "Just in Time" was first fixed prior to February 15, 1972, and was one of the disputed Masters. Id. at 3, 5. In February 2004, Brown and the Simone Estate licensed "Just in Time" for use in the soundtrack of the motion picture "Before Sunset." Id. at 3. The closing credits of "Before Sunset" listed Brown and the Simone Estate as the licensors of "Just in Time." Id. Brown's first amended complaint asserted two claims for relief, for declaratory relief as to the ownership of the disputed Masters, and copyright infringement under the common law and California Civil Code § 980(a)(2) as a result of Andrew B. Stroud and SPE's sale to the public of digital copies of "Just in Time" without Brown's consent. Id. at 4-5.
After Andrew B. Stroud and SPE counterclaimed against Brown and the Simone Estate, the Simone Estate, "by its duly appointed administrator Lisa Simone Kelly" also filed counterclaims. Dkt. No. 263, No. 08-cv-02348 JSW. The operative counterclaims seek a declaration of the Simone Estate's rights and the return of Nina Simone's diaries, letters, photographs, recordings, videotapes, or other depictions of Nina Simone, the property identified on Schedules A and B of the Stroud Property Settlement, and all other recorded Nina Simone performances that are in the possession, custody, or control ofAndrew B. Stroud and SPE, or in which Andrew B. Stroud and SPE claim an ownership interest (the "Simone Materials"). Id. at 11, 13-14. The Simone Estate asserts four claims for relief in the counterclaims: (1) for declaratory judgment, seeking (a) a judicial declaration that the Estate is and always has been the rightful owner of the copyrights and other intellectual property rights to the Simone Materials, and that Andrew B. Stroud and SPE have no rights to the copyrights to the Simone Materials; (b) an injunction prohibiting Andrew B. Stroud and SPE from attempting to license, reproduce, manufacture, print, distribute, sell, market, promote, advertise and/or otherwise exploit the Simone materials; (c) a judicial order, under the All Writs Act, 28 U.S.C. § 1651, the law of implied easements and in the exercise of the Court's general equitable jurisdiction, requiring Andrew B. Stroud and SPE to identify and make all Simone Materials available for digital copying and/or non-destructive restoration by the Estate; and (d) enforcement of the portions of the injunctions entered in the prior actions that require the enjoined parties to deliver up to the Estate each and every recording, and all physical elements thereof; (2) for conversion as a result of Andrew B. Stroud's and SPE's unlawful exercise of dominion and control over Simone Materials that are the Estate's property; (3) for replevin, seeking judgment of possession and restitution as to Simone Materials wrongfully retained by Andrew B. Stroud and SPE; and (4) for an order that Andrew B. Stroud and SPE account for all profits, gains and advantages derived from their acts of conversion, infringement and for their other violations of law as well as a full accounting of any and all assets ostensibly owned by them or in their possession, custody or control, including any transactions, acquisitions or transfers by them relating to Nina Simone. Id. at 12-23.
On July 2, 2009, Andrew B. Stroud and SPE moved to transfer venue of the Stroud v. Castle Rock action to the Northern District of California under 28 U.S.C. § 1404(a). Dkt. No. 20, No. 07-cv-08638. On August 4, 2009, the District Court for the Southern District of New York granted the motion, concluding that the outcome in the Brown v. Stroud action will be dispositive of the claims at issue in Stroud v. Castle Rock because the "Justin Time" sound recording is but one of numerous sound recordings whose copyright ownership is at issue in the Brown v. Stroud action. Dkt. No. 105 at 2, 36-40, No. 09-cv-03796 JSW; Dkt. No. 33 at 2-3, No. 07-cv-08638 (S.D.N.Y). After the transfer, on November 13, 2009, this Court related Stroud v. Castle Rock to Brown v. Stroud. Dkt. No. 91, No. 08-cv-02348.
On December 7, 2009, counsel for Andrew B. Stroud and SPE moved to withdraw. Dkt. No. 25, No. 09-cv-03796 JSW. On March 25, 2010, the Court granted the motion to withdraw on the condition that former counsel will continue to receive filings on behalf of Andrew B. Stroud and SPE until they obtain a new lawyer. Dkt. No. 46, No. 09-cv-03796 JSW. On March 26, 2010, the Court ordered Andrew B. Stroud to show cause why this action should not be stayed pending the outcome of Brown v. Stroud. Dkt. No. 45, No. 09-cv-03796 JSW. On May 19, 2010, the Court issued an order staying the action upon consent of the parties. Dkt. No. 50, No. 09-cv-03796 JSW.
On March 18, 2011, Methven & Associates appeared as counsel for Andrew B. Stroud and SPE. Dkt. No. 53, No. 09-cv-03796 JSW.
On August 24, 2010, the Court issued a ruling on certain discovery disputes between the parties in Brown v. Stroud, defining the scope of discovery and ordering Andrew B. Stroud to produce materials consistent with the defined scope of the relevant song titles and recordings. Dkt. Nos. 204, 445 at 2, No. 08-cv-02348 JSW. In March 2011, Andrew B. Stroud produced some of the responsive recordings and counsel for the parties subsequently met and conferred regarding Andrew B. Stroud's refusal to produce other recordings. Dkt. No. 445 at 2, No. 08-cv-02348 JSW. On September 22, 2011, the Court held a hearing regarding another discovery dispute, and on October 6, 2011, counsel for the parties met and conferred further at the courthouse. Id. at 3.
It later came to light that on October 1, 2011, unbeknownst to the other parties in the lawsuit, ASI entered into a contract to sell the Nina Simone works in the...
To continue reading
Request your trial