Palmieri v. Defaria, 1403

• Citation: 88 F.3d 136
• Decision Date: 05 July 1996
• Docket Number: No. 1403,D,1403
• Parties: 1996 Copr.L.Dec. P 27,536, 39 U.S.P.Q.2d 1367 Eddie PALMIERI, Plaintiff-Appellant, v. John DEFARIA; Rafael Padilla; Randy Barlow; Teddy Mulet; Mike Scaglione and Robert Rodriguez, Defendants, Gloria Estefan; Sony Music Entertainment Inc.; Epic Records, a division of Sony Music Entertainment Inc., et al., Defendants-Appellees. ocket 95-7660.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 136

88 F.3d 136

1996 Copr.L.Dec. P 27,536, 39 U.S.P.Q.2d 1367

Eddie PALMIERI, Plaintiff-Appellant, v. John DEFARIA; Rafael Padilla; Randy Barlow; Teddy Mulet;

Mike Scaglione and Robert Rodriguez, Defendants,

Gloria Estefan; Sony Music Entertainment Inc.; Epic

Records, a division of Sony Music Entertainment

Inc., et al., Defendants-Appellees.

No. 1403, Docket 95-7660.

United States Court of Appeals,

Second Circuit.

Argued May 6, 1996.

Decided July 5, 1996.

Brian D. Caplan, New York City (Goodkind Labaton Rudoff & Sucharow LLP, Mark S. Arisohn, Jonathan Gardner, of Counsel), for Plaintiff-Appellant.

L. Peter Parcher, New York City (Parcher & Hayes, P.C., Jonathan Liebman, Orin S. Snyder, Jeffrey I. Carton, of Counsel), for Defendants-Appellees.

Before FEINBERG, CABRANES and PARKER, Circuit Judges.

FEINBERG, Circuit Judge:

Plaintiff Eddie Palmieri appeals from a judgment of dismissal entered in the United States District Court for the Southern District of New York, Richard Owen, J., in favor of defendants-appellees, the singer-composer Gloria Estefan and the entertainment companies that distribute Estefan's music. Ultimately Palmieri seeks review of the district court's in limine ruling excluding certain evidence. For the reasons stated below, we decline to review the merits of that ruling.

I. Background

In May 1991, Palmieri filed his complaint claiming copyright infringement in violation of 17 U.S.C. § 106. Palmieri is a co-owner of the copyright in the song "Paginas De Mujer." Palmieri alleged that Estefan's song "Oye Mi Canto" is substantially similar to "Paginas De Mujer," and he sought to prove that prior to composing "Oye Mi Canto," Estefan had access to "Paginas De Mujer."

In May 1995, defendants moved in limine "to exclude certain areas of [Palmieri's] proposed evidence" on the issue of Estefan's access to Palmieri's song. In an unpublished Memorandum Opinion, dated June 2, 1995, Judge Owen granted the motion in part and denied it in part. The judge determined that Palmieri's proposed evidence of radio air play of his song, including royalty statements based on estimated air play, was insufficient as a matter of law to infer access. Judge Owen also held that (1) evidence that two associates of defendant Gloria Estefan possessed a recording of Palmieri's song and (2) testimony of Jose Estefan, Gloria's brother-in-law, that the song was played at Estefan family gatherings, were not sufficiently probative of access.

Additionally, defendants sought to exclude Palmieri's evidence that approximately 40,000 copies of "Paginas de Mujer" were sold nationwide prior to the time "Oye Mi Canto" was composed, and at least 2,000 copies were sold in the Miami area, where Gloria Estefan lives. Judge Owen was "unable to assess the propriety of ... admissibility" of this evidence on the record before him. On this issue, he "den[ied] the motion in limine and await[ed] the proffer of evidence, subject to a possible motion to strike." Thus, the district court expressly preserved for trial, albeit conditionally, Palmieri's evidence of access based on the alleged "wide dissemination" of his song through record sales.

Palmieri was also prepared to offer evidence that he was a leader in the development of salsa music and had won five Grammy awards, and that Cheo Feliciano (Palmieri's lead singer) was extremely popular. He further alleged that Emilio Estefan, Gloria's husband, had stated that he and his wife were both "big fans" of Palmieri's music. Palmieri argued, based on Fisher-Price Toys v. My-Toy Co., 385 F.Supp. 218, 220 (S.D.N.Y.1974), that Gloria Estefan's professional interest in salsa music, Palmieri's status in the field and the availability of his song allowed an inference that Estefan had a reasonable opportunity to copy his song. Judge Owen did not rule on the admissibility of this additional evidence.

The judge filed his opinion on June 2, 1995. On June 5, the parties appeared for trial. At that time, Palmieri's counsel requested a stay of trial so that Palmieri could take an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), of the court's evidentiary ruling three days earlier. This request was denied. Palmieri's counsel then apparently attempted to have the judge rule against him and exclude Palmieri's evidence of record sales. Presumably Palmieri's strategy at this point was to have the court exclude all of his evidence, determine that his evidence was insufficient as a matter of law and enter a final appealable judgment against him. This request was denied because the evidence of record sales alone may have been sufficient to sustain a jury finding of access. The district court explained as follows:

If I heard what your total proof was on record sales you might make it.... The record on this is sketchy. We haven't had the witnesses on the stand. We don't know who sold what, where. We haven't heard anybody cross-examined. I am sympathetic to your posture, but I don't want the Court to be put in the position of making a ruling on the record that I can not say would support either way, which is exactly why I came out saying that one, give it a shot.

Palmieri's counsel informed the court that Palmieri still felt he had insufficient evidence to proceed to trial and would permit judgment to be entered against him. He did not specifically ask for a voluntary dismissal under Fed.R.Civ.P. 41(a), but he did indicate that he wanted a final judgment entered so that he could appeal the in limine evidentiary ruling. Defendants stated that they would not consent to a voluntary dismissal. However, they encouraged the court to enter a final judgment against Palmieri, although they did not formally move for an involuntary dismissal under Fed.R.Civ.P. 41(b) based on Palmieri's failure to prosecute.

The following colloquy ensued:

THE COURT: Again, though, let me be sure that the foundation for it is there.... I did not in effect make a ruling that you do or do not have other evidence that is sufficient. All I did was rule on what was challenged by those motions, and reached the rulings that I did and the opinion was filed. What steps go forward from that under the circumstances, as you've now put it on the record, that obviously is for you as a party to determine.

...

[PALMIERI'S COUNSEL]: And we intend to seek appellate review of [the in limine ruling], and as we discussed in chambers, rather than permit an interlocutory appeal, your Honor said that we have the right to enter judgment here and take an appeal from the ruling.

THE COURT: No, I didn't say that. The problem is we are here ready for trial. There is a jury panel waiting across the street from whose members the jury would be selected. We are ready for trial, and in effect, I take it the defendant is on record as being ready for trial, correct?

[DEFENDANTS' COUNSEL]: We're ready, your Honor.

THE COURT: And the plaintiff is saying, given those rulings and your assessment of what's left over, you do not believe you could prevail and, therefore, you are so announcing to the Court that you are not ready. Therefore, given the fact that the case is otherwise ready, I am in the position of having to say, since you don't proceed, I find for the defendant. That's what it amounts to.

[PALMIERI'S COUNSEL]: As long as it's understood that we're not waiving our appellate rights, your Honor.

THE COURT: I understand that whatever appellate rights you have you continue to possess, but you possess it against a certain framework, which is that we're here ready for trial, and you say that rulings that I made, in your view, mean that you couldn't prevail, and, therefore, you do not want to go forward.... Nevertheless, the fact is we're here ready to take whatever proof you want to offer, and you are saying, I do not choose to go forward, given my assessment of the case.

The judge then entered a judgment of dismissal against Palmieri, stating in the judgment that "Defendants announced themselves ready for trial. Plaintiff declined to proceed to trial."

Palmieri then appealed to this court.

II. Discussion

Palmieri's notice of appeal indicates that he is appealing from the judgment of dismissal. However, he states in his brief to us that the issue on this appeal is "[w]hether ... the District Court improperly excluded, prior to trial, individual items of circumstantial evidence of access...." Defendants contend that because Palmieri's claim was dismissed for failure to prosecute, the dismissal may only be reviewed for an abuse of discretion, and we may not substantively review the in limine evidentiary ruling. Palmieri responds that we may review that ruling on the merits because the judgment was a voluntary dismissal, which he solicited after the in limine evidentiary ruling effectively dismissed his case.

This appeal illustrates the problems that arise when a party tries to evade the final judgment rule. In the federal system, parties may appeal ordinarily only from "final decisions of the district courts." 28 U.S.C. § 1291. An in limine evidentiary ruling does not constitute a final ruling on admissibility, Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 463-64, 83 L.Ed.2d 443 (1984), and an appeal of such an order is barred. Coursen v. A.H. Robins Co., 764 F.2d 1329, 1342 (9th Cir.), corrected by 773 F.2d 1049 (9th Cir.1985). The rationale underlying this rule was stated in Luce, in which the Supreme Court held that a defendant must testify at trial in order to appeal an in limine ruling allowing the use of impeachment testimony:

Any possible harm flowing from a district court's in limine ruling ... is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the ... proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.

469 U.S. at 41-42, ...