Chauncey MAHAN, Plaintiff-Appellant, v. ROC NATION, LLC, Roc-A-Fella Records, LLC, Shawn Carter p/k/a “JAY Z“, Defendants-Appellees.
No. 15-1238-cv.
United States Court of Appeals, Second Circuit.
Feb. 24, 2016.
329-332
In Stephenson‘s first proceeding, DHS did not charge him as removable on account of his 2009 robbery conviction (relying solely on his 2004 and 2007 larceny convictions). And, in that first proceeding, the IJ declined to consider whether Stephenson‘s robbery conviction constituted an aggravated felony barring him from cancellation of removal. Therefore, because DHS had not previously charged Stephenson as removable based on his robbery conviction, and the IJ had never decided whether that conviction constituted an aggravated felony, DHS was not precluded from initiating a second removal proceeding based on that conviction, nor was the IJ barred from deciding the issue. See id. The petition for review is denied to this extent.
Deferral of Removal
Stephenson argues that, given the IJ‘s determination that he is likely to be detained upon removal to Jamaica, the IJ erred as a matter of law in concluding that he failed to demonstrate a likelihood of torture or a likelihood that Jamaican officials would torture or acquiesce to his torture with the requisite specific intent. He relies on country conditions evidence discussing unlawful killings by police, gang violence, societal stigmas against the mentally ill, and instances of abuse against prisoners (both mentally ill and healthy).
Stephenson‘s challenge to the IJ‘s evaluation of the country conditions evidence and determination as to the likelihood of events in Jamaica upon his return is a challenge to the IJ‘s factual findings, which we lack jurisdiction to review. See Pierre v. Gonzales, 502 F.3d 109, 121 (2d Cir. 2007); see also Hui Lin Huang v. Holder, 677 F.3d 130, 134-35 (2d Cir. 2012). We dismiss the petition for review to this extent. See Ortiz-Franco, 782 F.3d at 91.
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part.
James H. Freeman, JH Freeman Law, New York, NY, for Appellant.
Andrew H. Bart (Lindsay W. Bowen, on the brief), Jenner & Block LLP, New York, NY, for Roc-A-Fella Appellee.
Andrew H. Bart (Lindsay W. Bowen, on the brief), Jenner & Block LLP, New York, NY, for Shawn Carter Appellee.
Cynthia S. Arato (Daniel J. O‘Neill, on the brief), Shapiro Arato LLP, New York, NY, for Roc Nation Appellee.
PRESENT: AMALYA L. KEARSE, DENNIS JACOBS, and CHESTER J. STRAUB, Circuit Judges.
Chauncey Mahan appeals from the judgment of the United States District Court for the Southern District of New York (Schofield, J.) dismissing his claims alleging copyright co-ownership and conspiracy to commit conversion and/or trespass to chattel. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
From 1999 to 2000, Mahan was a sound engineer for a number of songs recorded by Roc-A-Fella Records. For his work, Mahan received a flat fee but did not obtain a right to royalties. Roc-A-Fella Records released most of these songs on albums during 1999 and 2000 (the “Albums“); the rest remained unpublished (the “Unpublished Recordings“). The Albums bear a copyright notice that lists Roc-A-Fella Records as the sole copyright owner. In 2000, Roc-A-Fella Records filed separate copyright registrations for each of the Albums; these registration statements list Roc-A-Fella Records as the sole owner (and do not mention Mahan). The Albums sold millions of copies.
Nearly fourteen years later—during which interval Mahan received no royalties from the sales of the Albums—Mahan demanded that Roc Nation pay him a $100,000 “storage fee” for keeping the Unpublished Recordings, or else Mahan would auction off the songs. Believing Mahan to be in unlawful possession of its property, counsel for Roc Nation contacted the LAPD, which seized the Unpublished Recordings. The LAPD did not press charges against Mahan.
After the LAPD incident, Mahan sued for a declaratory judgment that he is a co-owner of the songs on the Albums and of the Unpublished Recordings and to obtain damages for the defendants’ alleged conspiracy to commit conversion and/or trespass to chattel. The district court dismissed the copyright claims as time-barred and dismissed the claim alleging conversion and/or trespass to chattel for failure to state a claim because any communication that Roc Nation made to the LAPD was privileged. The district court also awarded defendants attorney‘s fees because Mahan‘s copyright claims were objectively unreasonable and doing so would deter future similarly frivolous lawsuits. This appeal followed.1
We review the grant of a motion to dismiss de novo, accept as true all factual allegations, and draw all reasonable inferences in favor of the plaintiff. Fink v. Time Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013).
1. Claims of co-ownership under the Copyright Act must be brought within three years of accrual. See Merchant v. Levy, 92 F.3d 51, 56 (2d Cir. 1996). A claim accrues when a reasonably diligent plaintiff knows or has reason to know of the injury upon which the claim is premised. Id.; see also Kwan v. Schlein, 634 F.3d 224, 228 (2d Cir. 2011). Claims of co-ownership typically accrue once there has been an “express repudiation” of ownership. See Gary Friedrich Enter., LLC v. Marvel Characters, Inc., 716 F.3d 302, 317 (2d Cir. 2013). A claim for co-ownership can accrue when “a book is published without the alleged co-author‘s name on it” or “alleged co-owners learn they are entitled to royalties that they are not receiving.” Id. Either scenario would satisfy the “express repudiation” standard to trigger accrual of a co-ownership claim.
By Mahan‘s own admission, it is clear that Roc-A-Fella Records had long ago expressly repudiated his ownership claims. The Albums, which have sold millions of copies since being released in 1999 and 2000, bear a copyright notice that lists Roc-A-Fella Records as the sole copyright owner. Mahan, an experienced sound engineer in the recording industry, had received no royalties for the sale of the Albums for fourteen years. These circumstances constitute clear “express repudiation” of Mahan‘s alleged co-ownership of the copyright. Mahan brought suit over ten years after the expiration of the applicable statute of limitations. All of his claims under the Copyright Act are time-barred.
2. Mahan seeks damages for conspiracy to commit conversion and/or trespass to chattel. Under California law (which governs this claim), communications made to law enforcement personnel enjoy absolute privilege. Hagberg v. Cal. Fed. Bank FSB, 32 Cal. 4th 350, 364, 7 Cal. Rptr. 3d 803, 81 P.3d 244 (2004). Mahan alleges that Roc Nation contacted the LAPD to report his purported unlawful possession of the Unpublished Recordings, leading to their seizure. This is precisely the type of communication that California immunizes from tort liability. See Action Apartment Ass‘n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1246, 63 Cal. Rptr. 3d 398, 163 P.3d 89 (2007).
3. The district court awarded attorney‘s fees to the defendants as the prevailing parties under
4. Defendants also seek attorney‘s fees and costs for this appeal under