Membler.com LLC v. Barber
| Decision Date | 23 September 2013 |
| Docket Number | 12-CV-4941(JS)(GRB) |
| Parties | MEMBLER.COM LLC d/b/a MEMBLER ENTERTAINMENT, Plaintiff, v. CHRISTIAN BARBER p/k/a "MR. I GOT IT" or "MIG" and MATTHEW WASSERMAN, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES
For Plaintiff:
Brian A. Bloom, Esq.
Tony Garbis Dulgerian, Esq.
Certilman, Balin, Adler & Hyman, LLP
For Defendants:
Michael W. Martin, Esq.
Ron Lazebnik, Esq.
Lincoln Square Legal Services, Inc.
Currently, the following motions are pending before the Court: (1) Defendant Matthew Wasserman's ("Wasserman") motion to dismiss the Complaint (Wasserman Mot. to Dismiss, Docket Entry 13); (2) Plaintiff Membler.com LLC's ("Plaintiff" or "Membler") motion to amend the Complaint (Pl.'s Mot. to Amend, Docket Entry 21); and (3) Defendant Christian Barber's ("Barber" or "MIG") motion to set aside the Clerk's entry of default and dismiss the Complaint (Barber Mot. to Dismiss, Docket Entry 29). For the following reasons, Barber's motion tovacate the default is GRANTED, Barber and Wassermans's motions to dismiss are GRANTED IN PART and DENIED IN PART, and Plaintiff's motion to amend the Complaint is GRANTED IN PART and DENIED IN PART.
Plaintiff originally commenced this case on October 3, 2012 against Wasserman and Barber (collectively "Defendants"), alleging claims against both Defendants for copyright infringement, conspiracy, misappropriation and conversion, and unjust enrichment; claims against Barber for breach of contract and breach of the implied covenant of good faith and fair dealing; and claims against Wasserman for tortious interference with contract.
Plaintiff is a company in the business of representing, managing, and promoting musicians to record labels and the general public. (Compl. ¶ 9.) Defendant Barber is a recording artist professionally known in the music industry as "Mr. I Got It" or "MIG." (Compl. ¶¶ 1, 10.) In or around 2009, Plaintiff contacted Barber, offering representation in the music industry. (Compl. ¶ 10.)
On approximately October 12, 2009, Plaintiff and Barber entered into a contract (the "Agreement"), for an initial period of three years, pursuant to which Barber agreed, amongother things, that Plaintiff would be his "sole and exclusive agent." (Compl. ¶ 11.) The Agreement was automatically renewable for another three year period if gross receipts generated by the parties during the initial term exceeded $350,000. (Compl. ¶ 12.) The Agreement also provided that, in exchange for its services, Plaintiff would retain a 50% co-ownership interest in the works and associated copyrights that Barber created. (Compl. ¶ 13.)
During the initial term, Plaintiff invested substantial time, effort, and capital into representing Barber, including assistance in producing and recording hundreds of songs and music videos. (Compl. ¶¶ 15-16.) Plaintiff was also a creative contributor to the lyrics and musical compositions of Barber's recorded music. (Compl. ¶ 15.)
Meanwhile, in or around mid-2010, Plaintiff hired Defendant Wasserman as an intern. (Compl. ¶ 19.) In that capacity, Wasserman gained access to confidential and proprietary information, including industry contacts. (Compl. ¶ 22.) Wasserman then used that information to convince Barber to breach the contract and exploited industry contracts to promise Barber that he could provide appropriate industry representation. (Compl. ¶¶ 20-24.) For example, in or around May 2012, Wasserman broke into Plaintiff's satellite offices in Hicksville and stole a computer hard drive containing over 300recorded songs from various artists, including Barber, as well as other confidential and proprietary information. (Compl. ¶ 25.)
Plaintiff terminated Wasserman, but Wasserman exploited the stolen songs and videos by attempting to solicit a record deal for Barber and using the video footage to promote Barber on Facebook and through other media outlets. (Compl. ¶¶ 26-29.) Plaintiff alleges that Barber "recently obtained a record deal, using the copyrighted material and confidential and proprietary information and trade secrets which the Defendants conspired to steal" from Plaintiff. (Compl. ¶ 30.)
The Proposed Amended Complaint generally contains the same factual allegations and claims as the initial Complaint. Accordingly, the Court will note the relevant differences, as necessary, during the course of its discussion.
Briefly, however, the Court takes this opportunity to highlight some of the key amendments contained in the Proposed Amended Complaint. Specifically, the Proposed Amended Complaint characterizes the Agreement as an "exclusive managerial, production[,] and agency agreement." (Proposed Amended Complaint ("PAC") ¶ 1.) It also adds some details about the Agreement, including that Membler agreed to "advise and counselMIG with respect to his music career" (PAC ¶ 14) and that Membler was MIG's "manager, agent, and producer" (PAC ¶ 15).
It further expounds upon the alleged contributions of Membler during the initial period, such as that its producers "provided creative assistance and suggestions in connection with the production of MIG's music" and that Plaintiff "created and produced all of the scenes for MIG's music videos." (PAC ¶ 20). Furthermore, the Proposed Amended Complaint explains that the hard drive that Wasserman allegedly stole from its satellite office "was the only original copy in Membler's possession" (PAC ¶ 29) and that "Wasserman's misappropriation and conversion of the hard drive has prevented Membler from filing applications to register the vast majority of the Copyrighted Works, since Membler no longer has a deposit copy to file with the United States Copyright Office" (PAC ¶ 30). However, since filing the original Complaint, Membler alleges that it obtained a copy of one of the works, a song entitled "Got Away," and subsequently received a U.S. Copyright Registration. (PAC ¶ 36).
Finally, the Proposed Amended Complaint adds a claim for declaratory judgment of joint authorship and a claim against Barber for accounting.
Plaintiff commenced this action on October 3, 2012 and served a Summons and Complaint on Wasserman on October 4, 2012.(See Docket Entry 4.) Plaintiff served a Summons and Complaint on Barber on October 11, 2012. (See Docket Entry 5.) Wasserman timely responded to the Summons and Complaint, but Barber did not, and on December 6, 2012, Plaintiff requested a certificate of default against Barber. (Docket Entry 11). The Clerk of the Court then issued a notice of default on December 10, 2012. (Docket Entry 12.)
As part of his motion to vacate the default, Barber asserts that on October 29, 2012 he emailed Plaintiff's counsel. (Barber Aff., Docket Entry 29-2, ¶ 13 & Ex. B.) Assuming that such response was sufficient, and still attempting to obtain representation himself, Barber failed to formally respond to the Complaint.
Currently, Defendant Barber requests that the Court set aside the entry of default against him and either dismiss the Complaint against him for lack of personal jurisdiction due to improper service of process or allow him to join in Defendant Wasserman's motion to dismiss. The Court will first address the motion to vacate default and, finding that the default should be vacated and that Barber should be permitted to join in Wasserman's motion to dismiss, the Court will simultaneously address those motions along with the cross-motion to amend.
As previously noted, the Clerk of the Court entered default against Defendant Barber on December 10, 2012. (Docket Entry 12.) Currently, Barber moves to vacate the default because Plaintiff served the Summons and Complaint at one of Plaintiff's prior addresses, his grandmother's house at 620 Baychester Avenue, Apartment 10F, Bronx, New York 10475. (Barber Aff. ¶ 3.) At the time of service, however, Plaintiff had moved several times, finally residing with his mother at 61 Ravine Avenue, Apartment 1B, Yonkers, New York 10701. (Barber Aff. ¶¶ 4-6.)
Plaintiff agrees that the default against Barber should be vacated and apparently concedes that it did not properly serve Barber with the original Summons and Complaint. (See Pl.'s Ltr. Resp. to Barber Mot. to Dismiss, Docket Entry 34.) On consent, the Court hereby VACATES the notice of default against Barber.
The Court will first address the applicable legal standards before turning to the merits of the pending motions.1
A. Legal Standards
In deciding Rule 12(b)(6) motions to dismiss, the Court applies a "plausibility standard," which is guided by "[t]wo working principles." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). First, although the Court must accept all allegations as true, this "tenet" is "inapplicable to legal conclusions;" thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678; accord Harris, 572 F.3d at 72. Second, only complaints that state a "plausible claim for relief" can survive a Rule 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 679. Determining whether a complaint does so is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.; accord Harris, 572 F.3d at 72.
Courts should grant leave to amend "when justice so requires." FED. R. CIV. P. 15(a)(2). Leave to amend should be granted unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility. See Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). To determine whether an amended claim is futile, courts analyzewhether the proposed pleading would withstand a motion to dismiss under ...
To continue reading
Request your trial