Selletti v. Carey

• Decision Date: 14 April 1999
• Docket Number: Docket Nos. 98-7449,98-7920
• Parties: 254 Copr.L.Dec. P 27,892 Christopher SELLETTI, Plaintiff-Appellant, v. Mariah CAREY, Sony Music Entertainment, Inc., Sony Songs, Inc., Avenue Records, and Broadcast Music, Inc., Defendants-Appellees, Sylvester Stewart, a/k/a Sly Stone, Steve Toppley, Ruby Jones, Wallyworld Music, Rye Songs, WB Music Corp., Columbia Records, Even Street Productions, Ltd., Jerry Goldstein, individually and as President of Even Street Productions, Ltd., and American Society of Composers, Authors and Publishers, Inc., Defendants.
• Court: U.S. Court of Appeals — Second Circuit

Page 104

173 F.3d 104

254 Copr.L.Dec. P 27,892

Christopher SELLETTI, Plaintiff-Appellant, v. Mariah CAREY, Sony Music Entertainment, Inc., Sony Songs,

Inc., Avenue Records, and Broadcast Music, Inc.,

Defendants-Appellees,

Sylvester Stewart, a/k/a Sly Stone, Steve Toppley, Ruby

Jones, Wallyworld Music, Rye Songs, WB Music Corp., Columbia

Records, Even Street Productions, Ltd., Jerry Goldstein,

individually and as President of Even Street Productions,

Ltd., and American Society of Composers, Authors and

Publishers, Inc., Defendants.

Docket Nos. 98-7449, 98-7920.

United States Court of Appeals, Second Circuit.

Argued March 17, 1999.

Decided April 14, 1999.

Jeffrey Levitt, Amityville, NY, for Plaintiff-Appellant.

Orin S. Snyder, Parcher, Hayes & Snyder, New York, N.Y. (Jill Israeloff Gross, of counsel) for Defendants-Appellees Mariah Carey, Sony Music Entertainment, Inc., and Sony Songs, Inc.

Mark C. Shames, Sbeglia & Shames, New York, NY, for Defendant-Appellee Avenue Records.

Judith Saffer, New York, NY, for Defendant-Appellee Broadcast Music, Inc.

Before: WALKER and CABRANES Circuit Judges, and TSOUCALAS, ^* Judge, Court of Int'l Trade.

JOSE A. CABRANES, Circuit Judge:

Plaintiff appeals from orders of the United States District Court for the Southern District of New York (Denny Chin, Judge ) imposing sanctions and requiring security for costs, dismissing the action for failure to comply with that order, and denying motions for relief from the dismissal. See Selletti v. Carey, 173 F.R.D. 96 (S.D.N.Y.1997); Selletti v. Carey, 174 F.R.D. 311 (S.D.N.Y.1997); Selletti v. Carey, 177 F.R.D. 189 (S.D.N.Y.1998). We conclude that the imposition of sanctions and a security requirement was within the district court's discretion, but that the court abused its discretion by dismissing the action without giving weight to plaintiff's asserted inability to comply with those orders. Accordingly, although we recognize the extraordinary effort that the district court already has devoted to this case, we vacate the order of dismissal and remand to the district court for further proceedings.

I. BACKGROUND

This action is based upon plaintiff Christopher Selletti's alleged authorship of the lyrics to defendant Mariah Carey's hit song titled "Hero." The complaint, filed in early 1996, asserts claims against Carey and various other defendants in the recording industry for violations of the Copyright Act, 17 U.S.C. § 101 et seq., and § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

On May 21, 1997, the district court ordered plaintiff to pay, within seven days, a $5,000 sanction for discovery abuses, and to post, by June 16, 1997, a $50,000 bond as security for defendants' costs and attorney's fees, which are potentially recoverable under the Copyright Act. ¹ See Selletti, 173 F.R.D. at 104. The court based its order on a finding that "Selletti ha[d] failed from the beginning to diligently prosecute this case." Id. at 98. In particular, plaintiff had failed to comply with the court's discovery schedule, pursuant to which his responses to interrogatories and document requests were due on October 21, 1996, and he had violated a specific order of the court, issued on December 13, 1996, to serve those responses by January 10, 1997. See id. at 99. Although plaintiff's then-counsel, Thomas Liotti, claimed to have "miscalendared" the due date, he was aware of his noncompliance by January 16 but did not communicate with the court or provide any discovery responses until the time of a conference held on January 30. See id.

The court also noted that during this period of delay, plaintiff had invited a newspaper reporter to a pre-trial conference, had appeared on an NBC television show to discuss this case, and had provided the show with a page of handwritten notes purporting to reflect his composition of the song. See id. at 99-100. Although those notes were within the scope of defendants' earlier document requests, they were not provided to defendants until April 1997. See id. at 100. Finally, the court found that "there is a serious risk that Selletti will be unable to pay the reasonable costs to which defendants may be entitled should they prevail," and that "the merits of Selletti's case are indeed questionable." Id. at 101, 102. "[T]aken together," the court concluded, "these circumstances suggest that Selletti's lawsuit is little more than a strike suit brought against potentially deep-pocket defendants." Id. at 102.

Plaintiff filed a notice of appeal (docket no. 97-7680); the appeal was subsequently dismissed by the Clerk of this Court due to plaintiff's failure to file a pre-argument statement, order a transcript, or pay the docketing fee within ten days after filing the notice of appeal. See Rules of the United States Court of Appeals for the Second Circuit, App. Part C, Civil Appeals Management Plan pp 3, 6(a).

In June 1997, after the deadlines for payment of sanctions and posting of the bond had passed, the district court received a letter from Ross M. Gadye--who would ultimately become plaintiff's second attorney--requesting a stay for the purpose, inter alia, of substituting himself as counsel. See Selletti, 174 F.R.D. at 312. Both four days before and four days after this letter was written, however, then-counsel-of-record Liotti wrote to the court without any mention of Gadye or the substitution. See id.

On June 26, 1997, the district court dismissed the complaint with prejudice due to plaintiff's failure to post the bond or pay the sanction ordered on May 21. In its order of dismissal, the court noted that plaintiff had requested a hearing concerning his professed inability to comply with those requirements, but the court stated that such a hearing was unnecessary. The court explained: "Even assuming that he cannot afford to pay the required amounts, my May 21, 1997 Decision and Order requiring a bond and imposing a sanction stands." However, the court did note that if plaintiff informed it within three business days that he was willing to promptly post a bond and pay the sanction, the court would consider vacating the dismissal.

Three weeks later, Attorney Gadye--who purported to represent plaintiff despite having failed to effect a substitution as counsel, see Rule 1.4 of the Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York (the "Local Civil Rules") ²--informed the district court that plaintiff "will pay the discovery sanction," and requested a lowering of the required bond and vacatur of the dismissal. Plaintiff never did pay the sanction. In any event, the district court treated the letter as a motion for relief pursuant to Fed.R.Civ.P. 60(b), ³ and, on July 25, denied the request. See 174 F.R.D. at 313. The court held that even if Gadye were authorized to file such a motion on plaintiff's behalf, it would be denied on the merits. See id. Specifically, the court rejected plaintiff's only new argument, that Attorney Liotti was responsible for the abuses on which dismissal was predicated. The court explained:

There is nothing in the record to suggest that Liotti did not conduct this litigation--including the lack of diligent prosecution and various violations of my orders--in exactly the manner desired by Selletti, and with his full complicity. In fact, plaintiff's efforts to publicize his case, including his broadcasting of documents and information while not providing those same items to defendants in discovery, appear to have been the joint efforts of Selletti and Liotti. Even if Liotti's alleged malfeasance or nonfeasance took place without Selletti's consent, however, Selletti is bound by the acts of his lawyer.

Id. at 314. The court then reviewed the grounds for its earlier order of dismissal and reaffirmed that decision. See id. at 315-16.

Nearly four months later, on November 19, 1997, after Gadye was substituted as counsel, plaintiff filed a formal Rule 60(b) motion, again based upon the alleged deficiencies of Attorney Liotti. See Selletti, 177 F.R.D. at 191. At a scheduling conference on this motion, the district court instructed plaintiff to submit a copy of the lyrics that he had allegedly authored. See id. at 189. Because these lyrics were virtually identical to those of Carey's song, the district court ordered an evidentiary hearing. See id. at 189-90. Plaintiff testified at the hearing, which was held on December 18, 1997, and defendants submitted (1) two tape recordings of Carey and a co-author purportedly working on the song, (2) a "writing book" allegedly kept by Carey while writing "Hero" and other songs, and (3) a videotape of the movie "Hero," which--according to defendants--was originally planned to include the Carey song, but which ultimately did not do so. See id. at 190.

Before the district court ruled on plaintiff's pending Rule 60(b) motion, plaintiff submitted an affidavit, this time disparaging the performance of his second counsel, Attorney Gadye. Although an accompanying memorandum of law purports to have been submitted by plaintiff pro se, the record strongly suggests that it was prepared by yet a third attorney, Jeffrey Levitt, who subsequently was substituted as counsel and who continues to represent plaintiff in this appeal.

By memorandum decision dated January 20, 1998, the district court denied plaintiff's Rule 60(b) motion. The court found that the time for appeal of the order of dismissal had expired, and that the Rule 60(b) motion was an improper attempt to circumvent those limits. See 177 F.R.D. at 192. In any event, the court concluded that the motion would be denied even if its merits were reached, because the earlier decision had been reinforced by plaintiff's pattern of blaming his attorneys for the problems with his case, by the prejudice to defendants that would result from reinstatement of the case after additional delay, and by the conclusion that plaintiff's case had no merit whatsoever. See id. at...