Songbyrd, Inc. v. Estate of Albert Grossman

Decision Date29 November 1999
Docket NumberDocket No. 98-9544
Citation206 F.3d 172
Parties(2nd Cir. 2000) SONGBYRD, INC., Plaintiff-Appellant, v. Estate of ALBERT B. GROSSMAN, doing business as Bearsville Records, Inc., Defendant-Appellee. August Term 1999 Argued:
CourtU.S. Court of Appeals — Second Circuit

Appeal from the October 21, 1998, order of the United States District Court for the Northern District of New York (David R. Homer, Magistrate Judge), dismissing as time-barred a suit, transferred from the Eastern District of Louisiana, claiming conversion of master tape recordings.


Justin Asher Zitler, New Orleans, LA. (Heslin, Rothenberg Law Firm, Albany, N.Y., on the brief), for plaintiff-appellant.

Mario D. Cometti, Ryan & Smallacombe, LLP, Albany, N.Y., for defendant-appellee.

Before: VAN GRAAFEILAND, NEWMAN, and POOLER, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal concerns a congeries of issues relating to (1) the procedure to be followed in challenging a district court's transfer order, (2) the existence of personal jurisdiction, and (3) the accrual of a cause of action under New York law for wrongful possession of a chattel. The issues arise on an appeal by SongByrd, Inc., from the October 21, 1998, order of the United States District Court for the Northern District of New York (David R. Homer, Magistrate Judge) rejecting as time-barred a suit brought against the estate of Albert B. Grossman, doing business as Bearsville Records.1 SongByrd's suit sought to establish ownership of master recording tapes made by Henry Roeland Byrd, a New Orleans rhythm-and-blues pianist and composer. We conclude that personal jurisdiction was lacking in Louisiana, where the suit was originally brought, that it was properly transferred to the Northern District of New York, and that the suit is time-barred. Accordingly, we affirm.

A. Facts

The complaint and supporting documents alleged the following historical facts, which are undisputed for purposes of the challenged ruling that the suit is time-barred.2 The late Henry Roeland Byrd, known professionally as "Professor Longhair," enjoyed some success as a recording artist in New Orleans in the 1940s and 1950s. In 1971 he was discovered working in a New Orleans record store by Arthur "Quint" Davis, who needed performers for the New Orleans Jazz and Heritage Festival, known as "JazzFest," which Davis and others had organized. Byrd became a star attraction of JazzFest until his death in 1980.

Early in the 1970s, Davis and attorney Parker Dinkins arranged for Byrd to make several master tapes in a Baton Rouge studio. After hearing demo tapes produced from these master recordings, Albert Grossman, president of Bearsville Records, Inc., in Woodstock, New York, arranged with Davis and Dinkins for Byrd and another New Orleans musician to travel to Woodstock for a recording session. The results of that session were unsatisfactory, and thereafter Davis sent the master tapes to Grossman. According to an uncontradicted affidavit of Davis, the tapes were delivered "as demonstration tapes only, without any intent for either Albert Grossman or Bearsville Records Inc. to possess these aforementioned tapes as owner."

The tapes remained in Grossman's possession. Dinkins, acting on behalf of Davis and Byrd, wrote two letters to Bearsville Records, Inc. in 1975 requesting return of the master recordings. It is not clear whether the letters were ever received. In any event, Bearsville Records, Inc. made no response, and Dinkins did not pursue the matter.

After Grossman died in 1985, Bearsville Records, Inc., was dissolved, but Grossman's estate ("the Estate") continued doing business as Bearsville Records and continued in possession of the master tapes.3 The Estate did not produce any records itself, but licensed recordings and made its studio available for rental to musicians. In 1986, as part of its licensing business, the Estate licensed some of the Byrd master recordings to Rounder Records Corporation ("Rounder") of Cambridge, Mass., for an advance against royalties. In 1987, Rounder released an album of Byrd's recordings, which garnered Byrd a posthumous Grammy Award for Best Traditional Blues Album of 1987. The Estate also licensed some of the master recordings to Rhino Records ("Rhino"), which released an album in 1991 with seven tracks from the Byrd master recordings.

In 1993, SongByrd, Inc. was incorporated as a successor-in-interest to the intellectual property rights of Byrd and his deceased widow.

B. Proceedings in Louisiana

On August 14, 1995, SongByrd filed a "Petition in Revendication" against the Estate in the Civil District Court for Orleans Parish, Louisiana. The petition sought a declaration that SongByrd owned the master tapes, return of the tapes, $50,000 in damages (the amount of the licensing fees allegedly already paid as an advance on royalties), substitution of SongByrd in any of the Estate's existing licensing agreements, and interest, fees, and costs.

The Estate removed the case to the United States District Court for the Eastern District of Louisiana (G. Thomas Porteous, Jr., District Judge) on diversity grounds, the jurisdictional amount for which was then $50,000.

In its answer, the Estate asserted two affirmative defenses: (1) lack of personal jurisdiction under the Louisiana long-arm statute, and (2) the action was time-barred. The Estate's Rule 12 motion to dismiss was treated as a motion for summary judgment because the parties submitted numerous affidavits. Explicitly declining to consider the personal jurisdiction issue, the District Court dismissed the suit on the ground that the action was time-barred. On appeal, the Fifth Circuit reversed, ruling that the District Court had erroneously upheld the Estate's time-bar defense on the record then made. See SongByrd I, 104 F.3d at 781. The Fifth Circuit remanded for further consideration of the time-bar defense,4 and to permit initial consideration of the personal jurisdiction issue. See id.

On remand, the Louisiana District Court entered a brief order (1) reflecting that the Court had found that it lacked personal jurisdiction over the Estate and (2) sua sponte transferring the action to the District Court for the Northern District of New York.

C. Proceedings in the Northern District of New York

After the transfer, the parties agreed to adjudication by a magistrate judge, see 28 U.S.C. 636(c) (1994), and the transferred action was assigned to Magistrate Judge Homer. On the Estate's motion for summary judgment, Magistrate Judge Homer ruled that (1) New York law applied because the ground for the transfer was that the Louisiana District Court lacked personal jurisdiction over the Estate, (2) the pertinent limitations period was New York's three-year limitations period for conversion and recovery of chattels, see N.Y. C.P.L.R. 214(3) (McKinney 1990), (3) SongByrd's action accrued no later than August 1986 when Bearsville licensed the master tapes to Rounder, and (4) the suit, filed in 1995, was time-barred. See SongByrd, Inc. v. Estate of Albert B. Grossman, 23 F. Supp. 2d 219, 221-23 (N.D.N.Y. 1998) ("SongByrd II").

I. The Transfer Order from the Eastern District of Louisiana

Although SongByrd has not explicitly challenged the transfer order, its challenge to the Louisiana court's ruling that personal jurisdiction over the Estate was lacking implicates the transfer ruling, which was based solely on lack of personal jurisdiction. Moreover, uncertainty in the law of this Circuit concerning the proper procedure to be followed in challenging a transfer order makes it appropriate to give the matter some consideration. Four issues arise: (1) Is the transfer order reviewable in the transferor circuit? (2) If not reviewed in the transferor circuit, is it reviewable in the transferee circuit? (3) If review in the transferee circuit is proper, is a retransfer motion in the transferee district court required to preserve the transfer issue for appeal? (4) Where the transfer is ordered for lack of personal jurisdiction, what must the party opposing transfer show in order to have the transferee circuit reach the merits of the personal jurisdiction ruling?

1. Reviewability

A transfer order is an interlocutory order that is not immediately reviewable by appeal. See D'Ippolito v. American Oil Co., 401 F.2d 764, 764-65 (2d Cir. 1968); 17 Moore's Federal Practice 111.60[1] (3d ed. 1999) ("Moore"). Review of transfer orders by writ of mandamus in the transferor circuit might be available,5 but the Fifth Circuit, to which SongByrd might have petitioned, rarely grants such review, see 15 Charles A. Wright et al., Federal Practice and Procedure 3855, at 488-89 (2d ed. 1986). The failure to seek mandamus review of an interlocutory ruling does not forfeit the opportunity to obtain review on appeal from a final judgment. See 19 Moore 203.32[3][b]; cf. Arthur v. Nyquist, 547 F.2d 7, 9 (2d Cir. 1976) (interlocutory appeal permissive, not mandatory).

2. Review in the Transferee Circuit

In the transferee circuit, review of a transfer order is available upon appeal from a final judgment. See Magnetic Engineering & Manufacturing Co. v. Dings Manufacturing Co., 178 F.2d 866, 869 (2d Cir. 1950) (L. Hand, C.J.). Judge Frank, who dissented in Magnetic Engineering because he would have reviewed the transfer order by mandamus, understood the majority opinion to recognize the possibility that the transferee court of appeals could issue mandamus to direct a retransfer. See id. at 871 (Frank, J., dissenting in part).

3. Need for a Motion to Retransfer

Most Circuits have held that in order to preserve the opportunity for review of a transfer order in the transferee Circuit, a party must move for retransfer in the transferee district court. See FDIC v. McGlamery, 74 F.3d 218, 221 (10th Cir. 1996); United States v. Copley, 25 F.3d 660, 662 (8th Cir. 1994); Brock v. Entre Computer...

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