Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ERIC A. ELLIOTT (p/k/a FLY
HAVANA), MEMORANDUM AND ORDER
Plaintiff, 19 Civ. 1998 (NRB) - against –
JOSEPH ANTHONY CARTAGENA (p/k/a
FAT JOE), et al.,
Defendants.
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NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Eric A. Elliott (“Elliott”) has brought this action alleging copyright infringement based on claims that he is the co-
author and co-owner of the song “All The Way Up.” Before the Court
is defendants’ [1] renewed motion for summary judgment. Central to
this motion is the admissibility under Rules 1003 and 1004 of the
Federal Rules of Evidence of a draft of a contract that defendants
maintain establishes that Elliott contractually assigned away all
of his rights in the song. For the following reasons, defendants’
motion is granted in its entirety.
BACKGROUND Although the Court has previously set out many of the facts in this case in our July 31, 2020 Order, see Elliott v. Cartagena,
No. 19 Civ. 1998, 2020 WL 4432450 (S.D.N.Y. 2020), we summarize
the relevant facts necessary to resolve this motion, drawn from
the complaint filed on March 6, 2019 (“Complaint”), ECF No. 6, and
the materials submitted by the parties in connection with this
motion and the prior motion for summary judgment. [2]
I. Meetings Regarding Elliott’s Rights to The Song “All The Way Up”
The underlying facts are largely undisputed. Central to the narrative is a meeting between Fat Joe and Elliott in March
2016 at which Elliott signed a “piece of paper” and received a
$5,000 check. See Compl. at ¶¶ 50-56. This meeting was preceded
by a call between Fat Joe and Elliott in early March 2016, in which
Elliott requested payment “up-front or publishing going forward”
as a means of credit or compensation for his contribution to “All
The Way Up.” Parties’ Original Rule 56.1 Stmts. ¶ 2 [3] ; Compl. at
41.
Following the conversation, Elliott and Fat Joe met at an IHOP in mid-March 2016. See Parties’ Rule 56.1 Stmts. ¶ 5. At
this meeting, Fat Joe presented Elliott with a “piece of paper”
and a $5,000 check, which had a memo line that read “write.” Id.
at ¶¶ 8-9; Compl. ¶ 50. Following a short discussion, Elliott
signed the “piece of paper,” which he left with Fat Joe, and took
the check, which he later deposited. Id. at ¶¶ 10-12.
II. Original Summary Judgment
Five months after this action was commenced, a subgroup of defendants requested leave to file a motion to dismiss the
Complaint in its entirety, asserting that the “piece of paper”
signed at the IHOP meeting released all copyright claims and would
dispose of the case. See ECF No. 112. The Court responded by
directing the parties to file any existing copies of the “piece of
paper” and declarations explaining any lack of possession. See
ECF No. 125. Elliott, Fat Joe, and Erica Moreira, Fat Joe’s
transactional counsel at the relevant time, all submitted
declarations stating that they were not in possession of the “piece
of paper” signed at the IHOP meeting. See ECF Nos. 131-1, 131-2,
132-1. Moreira stated that she had prepared a draft (the “Draft
Agreement”) at Fat Joe’s request, incorporating information from
Elliott’s driver’s license, see Moreira Sept. 18, 2019 Decl. at ¶¶
5-8(ECF No. 131-2), and Fat Joe attested that he printed this
version of the document without changes and brought it to the
meeting with Elliott. See Cartagena Decl. (ECF No. 131-1). Fat
Joe further affirmed that he was unable to locate the signed
version of the “piece of paper” after searching his home, personal
belongings, and asking people “in [his] circle at the time.” Id.
at ¶ 9. According to both Fat Joe and Moreira, Fat Joe “may have
provided the document to [his] then-manager, Mr. Elis Pacheco,”
although Fat Joe also noted that “[he] under[stood] that [Pacheco]
indicated he was unable to locate a signed copy of the Agreement.”
Id.; see also Moreira Sept. 18, 2019 Decl. at ¶ 8-9(ECF No. 131-
2).
On October 17, 2019, the Court held a pre-motion conference and granted defendants leave to file a pre-discovery motion for
summary judgment limited to the issue of establishing the contents
of the agreement signed at the IHOP meeting despite the absence of
the signed version of the “piece of paper.” See ECF Nos. 135,
141. Following briefing by the parties, see ECF Nos. 143-163, in
which defendants relied on the best evidence rule to establish the
contents of the agreement based on the Draft Agreement, the Court
issued an order on July 31, 2020 denying defendants’ motion without
prejudice based on defendants’ failure to exhaust all efforts to
obtain sworn testimony from Pacheco regarding the location of the
signed version of the agreement. See ECF No. 166. The Court
granted defendants leave to renew the motion for summary judgment
after securing non-hearsay evidence sufficient to meet the
requirements of Fed. R. Evid. 1004. Id.
III. Defendants’ Efforts to Contact Pacheco Pursuant to the Court’s Order, defendants retained a process server and sought to serve Pacheco, who no longer worked with Fat
Joe, with a deposition subpoena. See Defs. Rule 56.1 Stmt. ¶ 36;
Nguyen Decl. at ¶¶ 4-5 (ECF No. 184-1). Defendants issued four
subpoenas, dated August 24, 2020, September 1, 2020, September 14,
2020, and December 16, 2020, and made eleven unsuccessful attempts
at service. Nguyen Decl. at ¶¶ 5-13. On January 15, 2021,
defendants requested leave to file a motion for alternative service
via certified mail, email, and Facebook, which the Court granted.
See Parties’ Rule 56.1 Stmts. ¶ 37. As with the earlier attempts
at service, defendants’ alternative service efforts did not result
in a response from Pacheco or his appearance at a noticed
deposition. Id. at ¶ 38. Recognizing that defendants had
exhausted all efforts to contact Pacheco, the Court granted
defendants leave to renew their motion for summary judgment. See
ECF No. 183.
STANDARD OF REVIEW Summary judgment is properly granted where “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56. A fact is
considered to be material “when it might affect the outcome of the
suit under governing law,” and “[a]n issue of fact is genuine if
the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 202 (2d Cir. 2007) (internal quotation marks and
citations omitted). The party seeking summary judgment “always
bears the initial responsibility of informing the district court
of the basis for its motion,” as well as the basis for the absence
of genuine dispute as to any material fact. Celotex Corp. v.
Catrett,
judgment may not merely rest on the allegations or denials of his
pleading; rather his response, by affidavits or otherwise as
provided in the Rule, must set forth specific facts demonstrating
that there is a genuine issue for trial.” Wright v. Goord, 554
F.3d 255, 266 (2d Cir. 2009). “[C]onclusory statements,
conjecture, and inadmissible evidence are insufficient to defeat
summary judgment.” Ridinger v. Dow Jones & Co. Inc., 651 F.3d
309, 317 (2d Cir. 2011) (internal quotation marks and citation
omitted).
“Only in the rarest of cases may summary judgment be granted against a party who has not been afforded the opportunity to
conduct discovery,” because “[t]he nonmoving party must have had
the opportunity to discover information that is essential to his
opposition to the motion for summary judgment.” Christie’s Inc.
v. Davis, 247 F. Supp. 2d 414, 418-19 (S.D.N.Y. 2002) (internal
quotation marks and citation omitted).
DISCUSSION I. Elliott Assigned His Rights By Signing The Agreement A. The Draft Agreement is Admissible under Fed. R. Evid. 1003 and 1004.
The threshold issue in this case is the admissibility of the draft of the agreement signed by Elliott at the March 2016 meeting.
As discussed above, the Court directed an extensive effort to
locate a signed copy of the “piece of paper,” which Elliott had
signed at the IHOP meeting with Fat Joe. Based upon those
exhaustive efforts, it is clear that a signed copy cannot be
located. Plaintiff does not suggest otherwise. Thus, this is one
of the “rarest of cases” in which summary judgment is appropriate
despite the lack of formal discovery. Hellstrom v. U.S. Dep’t of
Veterans Affairs,
We start by examining whether defendants have established that the Draft Agreement is admissible to prove the contents of
the agreement signed by Elliott. According to the best evidence
rule, “[a]n original writing . . . is required in order to prove
its content unless these rules or a federal statute provides
otherwise.” Fed. R. Evid. 1002. Two relevant exceptions to this
rule are codified in Rules 1003 and 1004 of the Federal Rules of
Evidence. The first exception is that a document may be admissible
as a duplicate of the original document. Fed. R. Evid. 1003. It
is undisputed that Elliott and Fat Joe met at an IHOP in March
2016. Parties’ Rule 56.1 Stmts. ¶ 5. At the meeting, Fat Joe
presented Elliott with a “piece of paper,” which Elliott signed
and left with Fat Joe, as well as a $5,000 check, which Elliott
took with him and later deposited. Id. ¶¶ 8-12. Fat Joe’s
transactional attorney, Erica Moreira, has submitted a sworn
declaration that she prepared the “piece of paper” following a
request on March 2, 2016 from Fat Joe. Moreira Sept. 18, 2019
Decl. ¶¶ 4-7 (ECF No. 131-2). According to Moreira, the document
that she prepared is the Draft Agreement, which was “tailored” to
include Elliott’s driver’s license information, taken from a
picture of Elliott’s license that Pacheco had emailed to Moreira
on the morning of March 11, 2016. Id. at ¶¶ 5-6; ECF No. 131-3.
Later that afternoon, Moreira emailed the Draft Agreement to
Pacheco and Fat Joe, titling the email “Work For hire for Andrew
Eric Elliot – Writer who is claiming a portion of All The Way Up.”
ECF No. 145-1. Both of these emails have been submitted to the
Court. Fat Joe’s own sworn declaration states that he subsequently
printed Moreira’s Draft Agreement without altering it and brought
it to the meeting with Elliott. Cartagena Decl. at ¶¶ 6,8 (ECF
No. 131-1). Accordingly, in our July 31, 2020 Order, we held that
the Draft Agreement, ECF No. 145-1, is admissible as a duplicate
to the same extent as the original agreement under Fed. R. Evid.
1003. ECF No. 166 at 7-8.
Having found that the Draft Agreement is admissible as a duplicate of the original, the next issue is whether the duplicate
is evidence of the contents of the agreement. The answer is
clearly yes, under the “well recognized exception [to the best
evidence rule] . . . that secondary evidence may be admitted in
lieu of the original provided the original has not been lost,
destroyed or become unavailable through the fault of the proponent
and provided the copy does not otherwise appear to be
untrustworthy.” United States v. Knohl, 379 F.2d 427, 441 (2d
Cir. 1967). Defendants have invoked the exceptions listed in Rule
1004(a) and (b) to support the introduction of the Draft Agreement
to establish the contents of the agreement signed at the March
2016 meeting. Defs. Mot. at 15 (ECF No. 184-11). With ample,
unchallenged evidence that the Draft Agreement is the document
that Elliott signed, the only issue is whether the defendants have
adequately explained their inability to produce the signed
version.
According to Rule 1004 of the Federal Rules of Evidence, “[a]n original is not required and other evidence of the content of a
writing . . . is admissible if: (a) all the originals are lost or
destroyed, and not by the proponent acting in bad faith; [or] (b)
an original cannot be obtained by any available judicial process.”
Before seeking to “satisfy [this exception], the party seeking to
prove the contents of the writing must establish a proper excuse
for the nonproduction of the document and that the original did
exist.” Bobcar Media, LLC v. Aardvark Event Logistics, Inc., 354
F. Supp. 3d 375, 382 (S.D.N.Y. 2018) (internal quotation marks and
citation omitted). As an initial matter, there is no dispute that
a signed, original version of this agreement existed, as has been
attested to by both defendants and Elliott. According to both Fat
Joe and Elliott, during the March 2016 meeting, “Elliott signed
the agreement, returned it to [Fat Joe], and took the check
[presented with the agreement].” Cartagena Decl. at 7 (ECF No.
131-1); see also Elliott Decl. at 11 (ECF No. 155) (“After I signed
the document, he immediately took the document and did not provide
me a copy.”). With no dispute regarding the existence of an
original, signed version of the document, we next determine whether
defendants have provided sufficient explanations for their
inability to produce it.
i. Defendants Have Established That the Original Document is Lost.
It is undisputed that the only parties present at the March 2016 meeting were Fat Joe and Elliott, and both parties agree that
Fat Joe left the meeting with the sole copy of the signed
agreement. Therefore, any inquiry as to the location of the
document must start with Fat Joe. According to his September 16,
2019 declaration, Fat Joe has attempted to find the document but
“cannot locate the agreement,” even after “look[ing] in [his] home,
[his] personal belongings, and [after] ask[ing] the people in [his]
circle at the time if they had the signed copy of any information
as to its whereabouts.” Cartagena Decl. at 9 (ECF No. 131-1).
Given his inability to locate the document in his possession or in
the possession of those close to him at the relevant time, Fat Joe
concluded that he had “provided the document to [his] then-manager,
Mr. Elis Pacheco.” Id. Fat Joe’s counsel, Moreira, echoed his
belief that a document of this nature would likely have been kept
in Pacheco’s possession. See Moreira September 18, 2019 Decl. at
¶ 8 (ECF No. 131-2) (“As Mr. Cartagena’s then manager, it was
typical for Mr. Pacheco to keep track of Mr. Cartagena’s documents,
and it was normal practice for me not to receive executed copies
of every document I drafted for Mr. Cartagena.”). As stated above,
given the significance of this document to this case, the Court
issued its July 31, 2020 Order, requiring defendants to obtain
non-hearsay evidence from Pacheco sufficient to meet the
requirements of Rule 1004, or to obtain the original document.
ECF No. 166.
Defendants thereafter embarked on a months-long effort to contact Pacheco. Over the following six months, defendants issued
four subpoenas and made nineteen unsuccessful attempts to serve
Pacheco. See ECF Nos. 169, 173, 175, 181. These service attempts
included eleven attempts of in-person service on Pacheco’s last
known address, as well as additional plausible addresses. (ECF
Nos. 169, 173, 175). Defendants even took the additional step of
requesting leave, which was granted, to serve Pacheco through
alternative means via certified mail, email, and Facebook. (ECF
Nos. 175, 180, 181). Having conducted “a diligent search in the
location where the document was last known to have been kept,”
defendants have established the loss of the document. Cosmopolitan
Shipping Co. v. Cont’l Ins. Co.,
2021). [4]
While plaintiff argues that defendants must “identify what happened to the original to be able to invoke the Best Evidence
Rule,” Pl. Opp’n at 6, the Court is entitled to rely on
circumstantial evidence to prove loss of an original document,
recognizing that proof of a diligent search is frequently the only
evidence available to a party to show that a document has been
lost or destroyed. See McCormick on Evidence, 237 at 715 (3d ed.
1984) (“Loss or destruction may sometimes be provable by direct
evidence but more often the only available evidence will be
circumstantial, usually taking the form that appropriate search
for the document has been made without discovering it.”); 5
Weinstein Evidence § 1004(1)[05] at 1004-18 (1983) (“By far the
most common means of prov[ing] loss or destruction is the use of
circumstantial evidence showing a diligent but unsuccessful search
and inquiry for the document.”) (quotation omitted). Moreover,
since the “diligence requirement is not a matter to be determined
by the fact finder,” and instead “shall be determined by the
court,” we find that there is no factual issue in dispute regarding
defendants’ efforts to locate the original document. [5] Burt Rigid
Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 92 (2d
Cir. 2002).
Nor are there any indicia of bad faith. Elliott fails to
offer any specific evidence showing that Fat Joe or any other
defendants have procured the loss of the original document in bad
faith or otherwise intentionally prevented its recovery and
production. Plaintiff’s conclusory allegations regarding
defendants’ credibility are totally unrelated to the loss of the
signed agreement and are accordingly irrelevant to this
determination. See, e.g., Crawford v. Franklin Credit Mgmt. Corp.,
No. 8 Civ. 6293,
(finding that plaintiff failed to offer “any concrete allegation
of bad faith” where plaintiff argued that defendant failed to
proffer any excuse for non-production of the document in
question). [6]
ii. Defendants Have Established That the Original Document Cannot Be Located Through Judicial Process.
In addition to establishing that the original document has been lost, it is also clear to the Court that if the document is
within the possession of Pacheco, it is beyond the reach of the
Court, per Rule 1004(b). With no other judicial recourse available
to obtain the document, the Court excuses production of the
original agreement by defendants, as it “cannot be obtained by available judicial process or procedure,” rendering it “as
inaccessible as though it had been lost or destroyed.” Allegra v.
Bowen,
forth above, we find that the requirements of Rule 1004(a) and (b)
have been satisfied.
B. The Draft Agreement Shows That Elliott Assigned his Rights.
Having established that defendants have satisfied the requirements of Rules 1003 and 1004, the Draft Agreement is
admissible as a duplicate of the original agreement and establishes
its contents. We now turn to the legal significance of the
agreement to ascertain the rights that Elliott transferred. The
parties agreed that the agreement would “be governed by the laws
of the State of Florida . . . with respect to any claim arising
under [the] Agreement.” ECF No. 145-1. Elliott has not suggested
that there is any ambiguity or lack of clarity in the contract.
Thus, we use a plain language reading. See Walgreen Co. v. Habitat
Dev. Corp.,
a contract is clear and unambiguous, the court is not at liberty
to give the contract any meaning beyond that expressed.”) (internal
quotation marks and citation omitted). At the outset, the contract
states that Elliott “irrevocably grants . . . any and all rights
of ownership or any other rights in and to the Master and the
underlying composition (the “Composition”) throughout the Universe
in perpetuity.” ECF No. 145-1. The agreement further states that
“Elliott acknowledges that [he] has no ownership or other rights
in and to the Master and the Composition and to the extent Elliott
has any rights he hereby assigns those rights, including any moral
rights and copyright rights . . . throughout the universe and in
perpetuity.” Id. Elliott also agreed to waive “any and all
payment of mechanical royalties due to composer for or in
connection with the Composition and the Master,” with his only
payment coming in the form of the $5,000 check presented at the
meeting. Id.
Moreover, while the contract may not be perfectly drafted, including a misspelling of Elliott’s name in the signature block,
there is no doubt that Elliott and Fat Joe are the intended
contracting parties, and the purpose of the contract was to assign
Elliott’s rights to “All The Way Up” in perpetuity “throughout the
Universe.” The contract contains Elliott’s driver license number,
which was emailed to Fat Joe’s transactional attorney the day
before she drafted the agreement, see ECF No. 131-2 ¶¶ 5-6, clearly
indicating that the correct Eric A. Elliott is identified as the
assignor. Thus, by its terms, the agreement unambiguously assigns
any ownership rights, copyright rights, and any additional rights
that Elliott had in the Composition and the Master.
II. Elliott’s Other Arguments Fail as a Matter of Law. We now turn to the remainder of plaintiff’s claims. The Draft Agreement not only resolves plaintiff’s claims regarding ownership
and authorship of “All The Way Up,” but it also resolves
plaintiff’s remaining claims.
A. Copyright Act Statute of Frauds
Elliott raises a number of arguments regarding the enforceability of the Draft Agreement, beginning with the claim
that the agreement is void based on the statute of frauds contained
in the Copyright Act, 17 U.S.C. ¶ 204(a). Pl. Opp’n at 12. This
provision requires that “a transfer of copyright ownership . . .
is not valid unless an instrument of conveyance, or a note or
memorandum of the transfer, is in writing and signed by the owner
of the rights conveyed or such owner’s duly authorized agent.”
Elliott has conceded that he signed an agreement at the March 2016
meeting. See Elliott Decl. at 11 (ECF No. 155). Indeed, the fact
that he signed the agreement is central to the Complaint and the
allegations against defendants. See, e.g., Compl. ¶¶ 54-56. Given
this undisputed fact, and the determination that the Draft
Agreement is admissible as a duplicate of the original agreement
and to prove its contents, the requirements of the statute of
frauds are met.
B. Lack of Consideration
Elliott’s second argument is that the agreement lacks any identified consideration and that the parol evidence rule prevents
defendants from establishing the $5,000 check as the consideration
referenced in the contract. See Pl. Opp’n at 12-14. While a party
that “provides no enforceable consideration for the agreement
. . . may not enforce the agreement against the other party,” there
is no basis in fact for Elliott’s argument. Robert L. Haag, Inc.
v. Swift & Co.,
that Elliott received a $5,000 check at the 2016 meeting, which he
subsequently cashed. Compl. ¶ 50. Under the terms of the
agreement, Elliott agreed to transfer his rights to Fat Joe in
exchange for “valuable consideration” that was agreed to be “full
and complete consideration for all of Elliott’s services . . .
(including any and all songwriting fees due),” with the
understanding that “no additional compensation. . .[would] be due
to Elliott.” (ECF No. 141-5). Thus, this check satisfied Fat
Joe’s obligation and functioned as the “valuable consideration”
referenced in the agreement. While Elliott seeks to construe the
simultaneous exchange of the $5,000 check as untethered to the
language of the contract, there is no support for that assertion.
Elliott’s retrospective frustration at the amount of money
notwithstanding, there is no dispute that Elliott signed the
contract, assigning his rights to the song, while simultaneously
receiving the $5,000 check from Fat Joe in exchange.
Elliott’s parol evidence argument is also unavailing. The parol evidence rule “is a rule of substantive contract law, not a
[federal] rule of evidence,” Petereit v. S.B. Thomas, Inc., 63
F.3d 1169, 1177 (2d Cir. 1995). Under Florida law, which applies
here, “[t]he general rule is that parol evidence is not admissible
to vary, contradict, or defeat the terms of a complete and
unambiguous written instrument.” Bond v. Hewitt, 149 So. 606,
607-8 (Fla. 1933). However, “for some purposes parol evidence can
be introduced to explain or amplify the consideration recited in
a written contract,” although this does not “permit proof of an
oral agreement for the purpose of imposing an affirmative
obligation on one of the parties of which there is no indication
or suggestion in the written contract.” Knabb v. Reconstruction
Fin. Corp.,
and citation omitted). Given the integration clause present in
the contract, and the lack of any claim of ambiguity, the parties
cannot seek to admit parol evidence to vary any term of the
contract. However, the parol evidence rule does not prevent the
Court from recognizing that the $5,000 check provided at the
meeting served as consideration. [7] It is clear from the facts
presented in the record that the check served as the “valuable
consideration” referenced in the agreement and further evidence of
Elliott’s intent to be bound by its terms.
C. Fraudulent Inducement/Negligent Misrepresentation Finally, Elliott argues that the agreement is void or voidable because he was fraudulently induced to enter into it. Elliott’s
argument is premised on alleged fraudulent representations made
around March 6, 2016 in a telephone call between Fat Joe and
Elliott, as well as alleged representations made at the IHOP
meeting. Pl. Opp’n at 16. According to Elliott, during the March
6 phone call, Fat Joe fraudulently promised that Elliott would
receive “some bread” up front, compensation as the song generated
additional income, and the opportunity to collaborate with Fat Joe
in the future. Compl. ¶ 42. Elliott also alleges that at the
IHOP meeting, Fat Joe stated that the $5,000 represented an initial
payment, with additional payments forthcoming, and repeated that
he would collaborate with Elliott on additional songs. Compl. ¶¶
52-55.
Regardless of whether these claims are true, and defendants deny that Fat Joe made these representations, the Draft Agreement
contains a merger clause that is fatal to the claims of fraudulent
inducement and negligent misrepresentation. Under the terms of
the merger clause, “[the] Agreement contains the entire
understanding of the parties . . . relating to the subject matter
[of the Agreement] and cannot be changed or terminated except by
an instrument signed by the parties.” ECF No. 145-1. Therefore,
plaintiff is barred from presenting “evidence of a prior or
contemporaneous oral agreement . . . to vary or contradict the
unambiguous language of [this] valid contract.” Johnson Enters.
of Jacksonville, Inc. v. FPL Grp., Inc.,
Cir. 1998) (internal quotation marks and citation omitted). The
inclusion of a merger clause in the contract also bars a claim of
fraudulent inducement where the claim “directly contradicts an
express provision of the written agreement.” Ungerleider v.
Gordon,
marks and citation omitted).
Try as he might, Elliott cannot avoid the clear and plain language of the contract that “no additional compensation
(including mechanical royalty or any other payments) will be due
to Elliott,” and that the consideration received, “the receipt and
sufficiency of which Elliott . . . acknowledge[d],” was the “full
and complete consideration” that Elliott would receive. See ECF
No. 145-1. Any alleged statements regarding future or additional
compensation are “explicitly contradictory to [these] specific and
unambiguous provision[s] of the contract.” Acquisition Corp. of
Am. V. Fed. Deposit Ins. Corp.,
Fla. 1991); Greenwald v. Food Fair Stores Corp.,
202 (Fla. Dist. Ct. App. 1958) (“[T]o admit into evidence the [pre-
execution evidence] . . . would contradict express specific terms
of the written agreement.”). Thus, Elliott cannot rely on a claim
of “fraud in the inducement . . . where the alleged fraud
contradicts the subsequent written contract.” Eclipse Med., Inc.
v. Am. Hydro-Surgical Instruments, Inc., 262 F. Supp. 2d 1334,
1342-43 (S.D. Fla. 1999); Acquisition Corp. of Am., 760 F. Supp.
at 1561 n.6 (finding no exception to the parol evidence rule “where
the alleged fraudulent inducement is explicitly contradictory to
a specific and unambiguous provision of the contract.”); Topp,
Inc. v. Unidem Am. Corp., 513 F. Supp. 2d 1345, 1350 (S.D. Fla.
2007) (finding no fraudulent inducement where “[a]ll alleged
misrepresentations or inducements are fully addressed and
incorporated into the written contract”). As a result, Elliott’s
claims of fraudulent inducement or negligent misrepresentation are
clearly unsupportable under Florida law.
D. Fiduciary Duty, Accounting, and Equitable Trust In addition to his arguments regarding the enforceability of the agreement, Elliott has raised a number of other state law
claims, including claims regarding Fat Joe’s breach of purported
fiduciary duties and the appropriate equitable remedies resulting
from that breach. See Pl. Opp’n at 14; Pl. Dec. 3, 2019 Opp’n at
10 (ECF No. 151). These arguments arise from an unsupported
premise: namely, that Fat Joe had a fiduciary relationship with
Elliott at the time the contract was signed. As an initial point,
“the duty to account for profits presupposes a relationship as co-
owners of the copyright,” and is thus tied to the relationship
between co-owners rather than co-authors of a song. Weber v.
Geffen Records, Inc., 63 F. Supp. 2d 458, 464 (S.D.N.Y. 1999)
(internal quotation marks and citation omitted); BMG Rights.
Mgmt., LLC v. Atl. Recording Corp., No. 16 Civ. 7443, 2017 WL
5125543, at *2 (S.D.N.Y. Nov. 2, 2017) (“In the context of
copyright ownership, in particular, a copyright co-owner may bring
an accounting claim against other co-owners for profits they made
from exploiting the copyright.”). Second, Elliott fails to cite
any authority, and the Court is likewise unaware of any, that
states that copyright co-authors or co-owners are fiduciaries to
one another. To the contrary, “there are traditionally no
fiduciary duties owed between joint authors or copyright holders.”
Mills v. Cottrell, No. 04 Civ. 5562, 2006 WL 3635325, at *5
(S.D.N.Y. Dec. 8, 2006). Thus, any potential relationship as a
co-author or co-owner is not sufficient, and Elliott has not
proffered evidence of “a position of trust or special confidence
. . . that impose[s] obligations beyond the express agreements
between the parties.” Gasery v. Kalakuta Sunrise, LLC, 422 F.
Supp. 3d 807, 819 (S.D.N.Y. 2019) (internal quotation marks and
citation omitted).
The terms of the agreement undeniably transfer all ownership rights to Fat Joe, eliminating any potential claim of co-ownership
between Elliott and defendants. See ECF No. 145-1. Further,
Elliott fails to establish any relationship, fiduciary or
otherwise, between himself and Fat Joe. In fact, there is no
evidence in the record that Fat Joe knew who Elliott was prior to
early March 2016, when Elliott posted on Instagram about the song.
See Compl. ¶ 39. Having failed to identify any fiduciary duties
that Fat Joe owed to Elliott, or any fiduciary relationship between
the two, Elliott’s claims fail as a matter of law.
CONCLUSION Accordingly, for the reasons stated above, defendants’ renewed motion for summary judgment is granted in its entirety and
the Complaint is dismissed with prejudice. [8] The Clerk of Court is
respectfully directed to terminate the motion pending at ECF No.
184 and to close the case. [9]
SO ORDERED .
Dated: New York, New York
January 5, 2022
____________________________ NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE
Notes
[1] Plaintiff has sued over 25 defendants who fall into the following broad categories: 1) the named co-authors of the song “All The Way Up”; 2) the publishing entities of these co-authors; 3) other entities that allegedly own copyrights in the song; and 4) entities involved in the distribution and exploitation of the song. This motion was brought by a subset of defendants, and “defendants” in this Memorandum and Order refers to the moving defendants and other defendants who joined them. Those defendants are: Joseph Anthony Cartagena (“Fat Joe”); Reminisce Smith Mackie; Remynisce Music; Joey and Ryan Music; Sneaker Addict Touring LLC; Terror Squad Productions, Inc.; Terror Squad Entertainment; RNG (Rap’s New Generation); Warner Chappell Music, Inc.; and Warner-Tamerlane Publishing Corp.
[2] Because this motion is a pre-discovery motion for summary judgment under Rule 56, some of the facts are drawn solely from the Complaint. Except as otherwise noted, the facts relied on are either undisputed or construed most favorably to plaintiff.
[3] “Parties’ Rule 56.1 Statements” refer to Defendants’ Supplemented Rule 56.1 Statement (ECF No. 185) and Plaintiff’s Rule 56.1 Counterstatements (ECF Nos. 156, 187-2) filed in conjunction with this motion and the original motion for summary judgment.
[4] The two New York state cases that Elliott cites to do not support
his position. Pl. Opp’n at 5-6. The New York Court of Appeals in Schozer v.
William Penn Life Ins. Co. of N.Y.,
[5] We also note that defendants have previously submitted a declaration by Andrew Kupinse, one of Fat Joe’s attorneys, who communicated with Pacheco in early March 2019 regarding the signed version of the agreement. See ECF No. 161. Defendants have also submitted an email chain between Kupinse and Pacheco from early March 2019 in which Pacheco told Kupinse that he was never in possession of the signed document. See ECF No. 181-9. Given concerns regarding the potential hearsay nature of these communications, the Court ordered additional discovery from Pacheco. See ECF No. 166.
[6] Indeed, given the absence of any basis to conclude that the unsigned Draft Agreement was not the document signed, defendants have no incentive to destroy the signed copy. In fact, defendants’ efforts to serve Pacheco in order to address any potential questions regarding this issue are indicative of the opposite of bad faith.
[7] We also note that under Florida law in a slightly different context, courts consider parol evidence in order to determine true consideration where the stated terms of consideration in a deed are listed as “one dollar and other valuable consideration.” See Menke v. Cournoyer, 330 So.2d 491, 493 (Fla. Dist. Ct. App. 1976) (“Where a deed recites a consideration of ‘one dollar and other valuable considerations’ the statement as to consideration is not complete and the true consideration may be shown by parol.”); Bond, 149 So. at 607 (“This court has committed itself to the doctrine that where a deed of conveyance recites a consideration of one dollar and other valuable considerations, the statement as to the consideration is not complete and the true consideration may be shown by parol.”); Mason v. Roser, 588 So.2d 622, 624 (“On occasion, however, parol evidence is admissible to resolve ambiguities with respect to the stated consideration for a conveyance. For example, a deed which recites a consideration of a sum of money and other valuable consideration is not complete as to the consideration, and the true character thereof may be shown by parol.”) (internal quotation marks and citation omitted).
[8] Elliott raises a number of other claims in his Complaint that are not specifically addressed in the motion papers. These additional claims are: unjust enrichment, quantum meruit, conversion, moneys had and received, negligence, and civil conspiracy. Having found that Elliott has assigned all of his rights in the song with no right to any future compensation, these claims are also dismissed.
[9] While this motion was brought by a subset of defendants, we find that any claims against the remaining defendants (Karim Kharbouch, Shandel Green, Marcello Valenzano, Andre Lyon, Edward F. Davadi, Jr, Excuse My French Music, Excuse My French Music II, Mr. Green Music, Dade Co. Project Music, Inc., Po Folks Music, Universal Music-Z Tunes LLC, Songs of Universal Inc., Roc Nation LLC, Roc Nation Management LLC, Empire Distribution, Inc.) necessarily fail. They are additional co-authors of the song and entities further down the distribution line. Given that Elliott has assigned away all of his rights to the song, the claims against these remaining defendants are without basis and are likewise dismissed. Separately, the Court acknowledges that defendants requested oral argument. However, given our holding and that our decision is based on clear legal doctrine, the Court determined that oral argument would not be productive.