Appendix — Songbyrd, Inc. v. Estate of Grossman
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992018 JUN 08 2008
a
In The
Supreme Court of the United States
Sd
SONGBYRD, INC.,
Petitioner,
Vs.
ESTATE OF ALBERT B. GROSSMAN, D/B/A
BEARSVILLE RECORDS
Respondent.
+
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Second Circuit
Sd
APPENDIX TO PETITION FOR A WRIT OF CERTIORARI
*
JUSTIN ASHER ZITLER
(Counsel of Record)
LAWRENCE J. GOLDSTEIN
2833 Napoleon Avenue
New Orleans, Louisiana 70115
(504) 897-0886
Attorneys for Petitioner
SongByrd, Inc.
The Professor Longhair Company
A Louisiana Corporation
\ ala
Dh TOS BEI Mel I ROA MECN Et er
App. 1
Appendix A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SONGBYRD, INC. CIVIL ACTION
VERSUS NO. 95-3706
BEARSVILLE RECORDS, SECTION T(1)
INC., ET AL.
DATE OF ENTRY: June 19, 1996
ORDER
PORTEOUS, District Judge.
\Before the Court is defendant’s Motion to Dismiss.
The motion was taken under submission after oral
arguments on the 29th day of January 1996. After a
review of the record, the memoranda filed by counsel, and
the applicable law, defendant’s Motion to Dismiss is
hereby GRANTED.
I.) BACKGROUND
Defendant, The Estate of Albert B. Grossman d/b/a
Bearsville Records (“the Estate”) is a successor to
Bearsville Records, Inc. (“Bearsville, Inc”), a New York
corporation which was dissolved in 1988. The Estate
operates a recording studio located in Woodstock, New
York as its primary business function.
Plaintitf, successor in interest to all rights and causes
of action of Henry Roeland Byrd p/k/a Professor
App. 2
Longhair, and his deceased wife, Alice Byrd, has sued the
Estate alleging various claims which all concern certain
master recordings by Professor Longhair which the Estate
contends that it or its predecessor has owned since 1972.
Plaintiff seeks the return of these recordings which it
claims are being wrongfully detained by the defendant.
II.) PLAINTIFF’S ACTION HAS PRESCRIBED
Defendant has moved to dismiss the action based on
prescription, or in the alternative, lack of personai
jurisdiction over the defendant. The Court believes that
the plaintiff’s claims are barred whether they are based in
contract, quasi-contract, or tort. La. C.C. Art. 3499
provides “unless otherwise provided by legislation, a
personal action is subject to a liberative prescription of ten
years”. While La. C.C. Art. 3492 provides:
Delictual actions are subject to a_ liberative
prescription of one year. This _ prescription
commences to run from the day injury or damage
is sustained.
The first demand for these tapes was made over 20 years
ago by Professor Longhair’s attorney in letters dated
January 9 and March 7 of 1975. Because 20 years have
passed between the demand letters and this suit, the
action has long since prescribed. Between 1975 and
Professor Longhair’s death in 1980, no suit was filed.
Additionally, after Professor Longhair’s death in 1980, his
heirs and successors also neglected to file suit in this
matter. It is only now, after 21 years from the demand
App. 3
letters and 24 years since the recordings were sent, that
the plaintiff has decided to take legal action.
The plaintiff argues that the defendant is a precarious
possessor and based on the precarious nature of the
possession, prescription has not tolled. This Court,
respectfully, disagrees. La. C.C. Art. 3437 states that the
“exercise of possession over a thing with the permission of
or on behalf of the owner or possessor is precarious
possession.” (emphasis added). In the instant case, it is
clear from SongByrd’s petition that Bearsville has not had
the plaintiff's permission to possess the tapes for over
fifteen years. Paragraph XIII of the plaintiff's petition
states, “Despite repeated requests over the ensuing 15
years for return of said demonstration tapes, Bearsville
failed to return the demo tapes.” La. C.C. Art. 3438 states
“a precarious possessor, such as a lessee or a depositary, is
presumed to possess for another although he may intend
to possess for himself.” In regards to the termination of
precarious possession, La. C.C. Art. 3439 states, “Any
other precarious possessor, or his universal successor,
commences to possess for himself when he gives actual
notice of this intent to the person on whose behalf he is
possessing.” Even if it could be said that the defendant
was a precarious possessor, defendant gave actual notice
that they intended to possess for themselves by refusing
to return the tapes for over 21 years and licensing the
recordings to third parties in consideration for the right to
receive royalty income.
App. 4
Ill.) THE STANDARD FOR SUMMARY JUDGMENT
HAS BEEN MET.
While defendant has moved to dismiss under Federal
Rules of Civil Procedure 12(b)(6), failure to state a claim
upon which relief can be granted, Rule 12 further provides
that
If...matters outside the pleading are presented to
and not excluded by the court, the motion shall be
treated as one for summary judgment... See Grove
v. Mead School Dist. No. 354, 753 F.2d 1528 (1985).
Both plaintiff and defendant have included exhibits which
are “matters outside the pleadings”, as such, the motion
will be treated as one for summary judgment.
Federal Rule of Civil Procedure 56(c) states that
summary judgment shall be rendered when “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact,
and that the moving party is entitled to a judgment as a
matter of law.” Federal Rules of Civil Procedure 56(c).
The Fifth Circuit has explained that “[t]he Supreme Court
has defined material facts as those that will affect the
outcome of the lawsuit under governing law.” Meyers v.
M/V Eugenio C, 919 F.2d 1070, 1072 (5® Cir. 1990); citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 2510 (1986).
Accordingly, it is this Court’s opinion that any claims
plaintiff may have had to the master recordings have long
since prescribed. This serves as the basis for granting the
ial ie
App. 5
defendant’s Motion for Summary Judgment. Therefore,
defendant’s second contention that this Court lacks
personal jurisdiction over both the Estate and Bearsville,
Inc. need not be addressed.
IT IS ORDERED that defendant’s Motion for
Summary Judgment is hereby GRANTED.
App. 6
Appendix B
United States Court of Appeals
For the Fifth Circuit.
SONGBYRD, INC., Plaintiff - Appellant,
v.
BEARSVILLE RECORDS, INC.; Albert B.
Grossman, Estate of, erroneously sued as
Bearsville Records, Inc., doing business as
Bearsville Records, Defendants — Appellees.
No. 96-30670
Summary Calendar.
Feb. 4, 1997.
Appeal from the U.S. District Court for the Eastern
District of Louisiana.
Justin Asher Zitler, New Orleans, LA, for plaintiff-
appellant.
Christina H. Belew, Denise C. Puente, Simon,
Peragine, Smith & Redfearn, New Orleans, LA, for
defendants-appellees.
Before HIGGINBOTTOTHAM, DAVIS, and WEINER,
Circuit Judges.
WIENER, Circuit Judge:
. Plaintiff-Appellant SongByrd, Inc. (SongByrd)
appeals from the district court’s dismissal of its action
App. 7
seeking to recover from Defendant-Appellee the Estate of
Albert B. Grossman d/b/a Bearsville Records (Bearsville),
several master tapes recorded by a legendary New
Orleans musician. Concluding that (1) the district court
improperly classified SongByrd’s suit as a personal rather
than a real action, (2) real actions are imprescriptible
under Louisiana law, and (3) Bearsville has yet to
establish that it gave SongByrd’s predecessors- in-interest
actual notice of Bearsville’s intent to possess the tapes for
itself, we reverse the district court’s summary judgment
ruling and remand for further proceedings consistent with
this opinion.
I.
FACTS AND PROCEEDINGS
The late Henry Roeland Byrd, also known as
“Professor Longhair,” was an influential New Orleans
rhythm-and-blues pianist and composer, and is widely
regarded as one of the primary inspirations for the
renaissance of New Orleans popular music over the last
thirty years. His numerous hits included original
compositions such as “Tipitina” and “Go to the Mardi
Gras,” as well as his famous renditions of Earl King’s “Big
Chief.” After achieving modest commercial success as a
local performer and recording artist in the 1940’s and
1950’s, Byrd fell on hard times during the 1960’s. His
fortunes began to change for the better in 1970, however,
when New Orleans music aficionado Arthur “Quint”
Davis, along with others, founded the New Orleans Jazz
and Heritage Festival (“JazzFest”). Needing talented
App. 8
performers for JazzFest, Davis located Byrd in 1971
working in an obscure record store in New Orleans and
transformed him into a perennial star attraction of the
JazzFest and other venues from that time until his death in
1980."
Soon after Byrd’s first performance at JazzFest, Davis,
acting as the pianist’s manager, and Parker Dinkins, an
attorney, arranged for Byrd to make several “master
recordings” at a Baton Rouge recording studio known as
Deep South Recorders. These master recordings consist of
four reels of 8-track tape which could be “mixed” to
produce either demonstration tapes or final recordings
suitable for the production of records, cassettes, and
compact discs. According to SongByrd, several
demonstration tapes produced from these master
recordings found their way to Bearsville Records, Inc., a
recording studio and record company located in
Woodstock, New York and operated by Grossman.
Impressed by the demonstration tapes, Grossman
apparently arranged with Davis and Dinkins for Byrd and
another New Orleans musician to travel to Bearsville’s
studio for a recording session.
For reasons that are unclear but not material to this
appeal, the Bearsville recording sessions proved
unsatisfactory. For equally unclear reasons, Davis and
1 These uncontroverted background facts are recounted in the liner
notes to the album, Professor Longhair, Houseparty New Orleans Style:
The Lost Sessions 1971-72, Rounder Records (1987), which SongByrd
submitted as an exhibit in response to Bearsville’s motion to dismiss.
App. 9
Dinkins wanted Grossman to be able either to listen to or
play for others the full version of the Baton Rouge master
recordings. In furtherance of this desire, Davis and
Dinkins caused the four “master recording” tapes to be
delivered to Grossman in New York. According to the as
yet unrefuted affidavit of Davis, these tapes were
delivered to Grossman, “as demonstration tapes only,
without any intent for either Albert Grossman or
Bearsville Records, Inc. to possess these aforementioned
tapes as owner.” Also for reasons as yet not explained by
either party, the tapes remained in Grossman’s possession
for many years thereafter.
Acting on behalf of Davis and Byrd in 1975, Dinkins
wrote two letters to Bearsville--the first addressed to a
George James, the second to Grossman _himself--
requesting that Bearsville return the master recording
tapes. Bearsville made no response whatsoever to
Dinkins’ letters (or at least has not introduced any
evidence of a response). Dinkins, for reasons as yet
unknown, did not press his request any further.
After Albert Grossman’s death in the mid 1980's,
Bearsville Records, Inc. was dissolved, but Grossman’s
estate continued to do business as “Bearsville Records.”
Even though it no longer signs artists or promotes their
products, Bearsville Records still operates a recording
studio which it leases to record labels and third parties; it
also licenses a catalog of recordings by artists originally
under contract with Bearsville Records, Inc. Acting in this
latter capacity, Bearsville licensed certain of the Byrd
master recordings to Rounder Records Corporation of
App. 10
Cambridge, Massachusetts (Rounder) for an advance
against royalties.
In 1987, Rounder released Professor Longhair,
Houseparty New _ Orl le: The Lost ions, an
album that contained 11 songs or “tracks” made from
Byrd’s original Baton Rouge master recordings. This
release garnered Byrd a posthumous Grammy Award for
Best Traditional Blues Album of 1987. The liner notes of
the Rounder album make hardly any reference to
Bearsville and no reference whatsoever to the contractual
agreement between Rounder and Bearsville.2 Bearsville
Records also licensed certain of the master recordings to
another record company, Rhino Records (Rhino).
According to SongByrd’s petition, Rhino released an
album, titled “Mardi Gras in Baton Rouge,” featuring
seven tracks from the Baton Rouge master recordings.
In 1993, SongByrd, Inc. was incorporated and
commenced business as successor- in-interest to the
intellectual property rights of Byrd and his deceased
widow, Alice Walton Byrd. In 1995, SongByrd filed this
lawsuit in state court in New Orleans against Bearsville
Records, Inc. SongByrd’s “Petition in Revendication”
sought a judgment (1) recognizing its ownership of the
master recordings, (2) ordering return of the recordings,
2 The only oblique reference to Bearsville is found in the third section
of the liner notes authored by “The Rounder Folks” and states: “Sadly
these tapes [the Baton Rouge master recordings] were not released, but
instead languished at Bearsville, their absence unremarked and unnoticed
except among collectors and a few cognoscenti.”
App. 11
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and (3) awarding damages. Bearsville timely removed the
suit to federal court and subsequently filed a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and (6),
asserting (a) lack of personal jurisdiction over Bearsville
and (b) failure of SongByrd to state a cause of action
because SongByrd’s claims were barred by liberative
prescription under Louisiana law. As both parties
submitted affidavits and exhibits outside the pleadings,
however, the district court correctly treated Bearsville’s
motion to dismiss as a motion for summary judgment
under Fed.R.Civ.P. 56(c).3 Pretermitting the question of
personal*776 jurisdiction, the district court then granted
the motion and dismissed SongByrd’s case. The court
held that SongByrd’s action was barred by liberative
prescription and also rejected SongByrd’s argument that
at all times Bearsville has been only a precarious possessor
and therefore prescription has never commenced to run.
SongByrd timely filed its notice of appeal from the district
court’s ruling.
3 Although defenses are generally not the proper subject of Rule
12(b)(6) motions, certain affirmative defenses that clearly appear on the
face of the plaintiff's complaint-most commonly that the statute of
limitations has run--may properly be asserted in a Rule 12(b)(6) motion.
See Kansa_ Reinsurance Co., Ltd. v. Congressional Mortgage Corp. of
Texas, 20 F.3d 1362, 1366 (St Cir. 1994); 5A Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 1357, at 352 (1990). As Bearsville
submitted affidavits and exhibits in support of its 12(b)(6) motion
asserting the affirmative defense of liberative prescription, however, the
court rectified any potential pleading deficiency by treating Bearsville’s
motion as one for summary judgment under Rule 56(c).
App. 12
I.
ANALYSIS
A. Standard of Review
When a district court treats a Rule 12(b)(6) motion as
a motion for summary judgment under Rule 56(c) because
matters outside the pleadings are presented to and not
excluded by the court, we review the grant of such a
motion just as we would any other grant of summary
judgment--that is, we review the grant of summary
judgment de novo and apply the same legal standards as
the district court. Accordingly, summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”5 Further, we construe all
evidence in the light most favorable to the non-moving
party without weighing the evidence, assessing its
probative value, or resolving any factual disputes.®
B. Applicable Law--Erie-Bound
1. Special Louisiana Erie Considerations
4 Morin v. Caire, 77 F.3d 116, 123 (5% Cir. 1996); Nat. Ass’n_ of
Govern. Emp. v. City Public Serv. Bd. of San Antonio, Tex., 40 F.3d 698,
712 (5t Cir. 1994).
5 Fed.R.Civ.P. 56(c).
6 Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5t Cir.
1996). r
nt FEET PR
App. 13
The basis of our jurisdiction, and that of the district
court, to decide the instant case is diversity of citizenship,
under which a federal court’s obligation is to apply
substantive state law. In Louisiana this obligation has
special dimensions because of our unique Civilian
tradition. We remain ever aware of the late Judge Rubin’s
caution to federal Erie courts applying Louisiana Civil law
to steer clear of the common law principle of stare decisis
and to apply instead the distinctly Civilian doctrine of
jurisprudence constante:
Because of the reviewing power of [Louisiana]
appellate courts, the [Louisiana] trial judge may
pay great respect to the decisions of these courts.
He is not bound to do so, however, because the
doctrine of stare decisis does not apply. Instead,
each judge, trial and appellate, may consult the
civil code and draw anew from its principles.
Interpretation of the code and other sources of law
is appropriate for each judge. The judge is guided
much more by doctrine, as expounded in legal
treatises by legal scholars, than by the decisions of
colleagues.... Instead of stare decisis, the rule is one
of deference to a series of decisions, jurisprudence
constante.’
Emphatically elaborating on the proposition that Erie
“does not command blind allegiance to [any] case on all
7 Alvin B. Rubin, Hazards of a Civilian Venturer in a Federal Court:
Travel and Travail on the Erie Railroad, 48 La.L.Rev. 1369, 1372 (1988)
(citations omitted) (emphasis in original).
App. 14
fours with the case before the court,” now-Chief Judge
Politz wrote that:
If anything, this flexibility is even greater when a
federal court sits as a Erie court applying the
Louisiana civil law. In such cases, “the Erie
bligati is _t ivi j
x ion of legislative will.’ “ Shelp, 333 F.2d at
439 (quoting the very first article of the Louisiana
Civil Code). The Louisiana Supreme Court has
taken great pains to “plainly state that ... the notion
f star isis, derived as it is f mmon
law h uld_not th t rolling in
state.” Ardoin v. Hartford Acc. & Indem. Co., 360
So.2d 1331, 1334 (La.1978). While caselaw in the
State of Louisiana is acknowledged as “invaluable
as previous interpretation ...” [id. at 1335], it is
nonetheless properly regarded as “secondary
information.” Id. at 1334.°
2. Prescription
The central issue in the instant appeal is whether
plaintiff's action is time barred. The answer to this
8 Shelp v. National Surety Corp., 333 F.2d 431, 439 (5t Cir.), cert.
denied, 379 U.S. 945, 85 S.Ct. 439, 13 L.Ed.2d 543 (1964).
9 Green v. Walker, 910 F.2d 291, 294 (5t Cir. 1990) (footnotes
omitted) (emphasis added). See also Principal-Health Care of Louisiana,
Inc. v. Lewer Agency, Inc., 38 F.3d 240, 245 n. 6 (5th Cir. 1994) (“Louisiana,
being the only civil law jurisdiction among the fifty states, is unique in
that its approach to solving most legal questions begins first and foremost
with a review of the Louisiana Civil Code. The Civil Code is thus the
civilian’s ‘Bible.’ Jurists in common law jurisdictions, on the other hand,
usually begin with a review of the case law on a particular issue.”).
App. 15
question depends on whether the applicable period of
limitation--prescription in Louisiana; statute of limitations
in the common law--is liberative or acquisitive. As shall
be seen from our analysis of the pertinent provisions of
the Louisiana Civil Code and from “legal treatises by legal
scholars,” the applicable type of prescription is
acquisitive. And, as shall also be seen below, our analysis
of Louisiana case law reveals that (1) this determination
comports with implications of the most recent
pronouncement of the Supreme Court of Louisiana, and
(2) at the very least, the “jurisprudence” on point is not
“constante,” which frees us to pursue our own analysis of
the Code, with the help of doctrinal writing.
C. Revindicatory Actions Are Imprescriptible
SongByrd contends that the district court erred when
it determined that SongByrd’s action seeking recognition
of its ownership interest in the master recordings, return
of those recordings, and damages, has prescribed under
Louisiana law. The district court’s memorandum order
held that SongByrd’s action had prescribed under
Louisiana Civil Code Articles 3499 and 3492 regardless of
whether SongByrd’s claims were based in contract, quasi-
contract, or tort. In so doing, the district court implicitly
characterized SongByrd’s action as a “personal action”
arising from these areas of law. This characterization of
SongByrd’s action constitutes the first and fundamental
error committed by the district court and led to its first
erroneous holding.
App. 16
[1] As explained by Professor A.N. Yiannopoulos in
his treatise on Louisiana property law, actions seeking
recognition of ownership or enforcement of the rights
thereof, whether in movable or immovable property, are
not personal actions; they are “real actions.”!° Such real
actions, otherwise known as “revindicatory actions,” are
expressly authorized by the Louisiana Civil Code." As
the official comments to the Code make clear, there are
two kinds of revindicatory action, depending on the object
of the ownership interest that the plaintiff seeks to have
recognized: (1) a “petitory action” for the recovery of
immovable property (real estate), and (2) an “innominate
real_action” for the recovery of movable property
(personalty).'* Further, any "incidental demand for
damages made in an action for the recovery of an
immovable [or a movable] does not affect the classification
of the main demand as a real action."
[2] It follows from this basic dichotomy that, as the
Civil Code specifically provides liberative prescription
periods for all manner of personal actions (including
delictual, contractual and quasi- contractual actions),"
10 A.N. Yiannopoulos, 2 Louisiana Civil Law Treatise § 241, 476
(1991).
11 See La.Civ.Code art. 526.
12 La.Civ.Code art. 526, cmt. b.; see also Yiannopoulos, supra, §§ 347
& 350, at 675-77 & 680-81 (on availability of real or revindicatory actions
for the recovery of movable property under Louisiana law).
13 Yiannopoulos, supra, § 242, at 477.
14 See La.Civ.Code arts. 3492-3502.
App. 17
“[l]iberative prescription does not bar real actions seeking
to protect the right of ownership.” The rationale for this
distinction is that “[u]nder our Civil Code, ownership can
never be lost by the failure to exercise it--only by the
acquisition of ownership by another through possession
sufficient to acquire it through an _ acquisitive
prescription.” Thus, it is well established in Louisiana
that the petitory action (for the protection of immovables)
is not barred by liberative prescription.'? The same rule
applies to the revindicatory action brought to assert or
protect the right of ownership in movable property
because it, too, is a real action, not a personal one. On this
point Professor Yiannopoulos’ Louisiana Civil Law
Treatise could not be clearer:
An action that is grounded on a wrongful act, that
is, an offense or quasi-offense, is subject to the
prescription of one year and an action grounded
on quasi-contract is subject to the prescription of
ten years. The _revindicat action [for th
recovery of movable property] is imprescriptible;
however, such an object is without object when the
defendant has acquired the ownership of a
movable by the acquisitive prescription of three or
ten years.!®
15 Yiannopoulos, supra, § 249, at 487.
16 All-State Credit Plan Natchitoches, Inc., v. Ratliff, 279 So.2d 660,
666 (La.1972).
17 Yiannopoulos, supra, § 249, at 487; see also Northcott Exploration
Co. v. W.R. Grace & Co., 430 So.2d 1077, 1080 (La.Ct.App. 3*4 Cir. 1983).
18 Yiannopoulos, supra, § 358, at 692-93 (emphasis added).
App. 18
Despite this obvious truism of Civilian doctrine,” a
number of older Louisiana decisions overlooked or
disregarded it and, just as the district court did here,
applied either one-year or ten-year periods of liberative
prescription on the erroneous assumption that the
revindicatory action is personal in nature, either
delictual?° or quasi-contractual.?!
19 See id. § 358, at 693, n. 5-8 (cases cited therein). Neither the briefs
filed by the parties nor our independent research reflect even relatively
recent treatment of this issue by the Louisiana Supreme Court, and the
older case law is, at best, mixed. Cases from the 1920’s and 1930's
occasionally characterize as delictual (tort), actions involving alleged
illegally or fraudulently appropriated movable property, and opinions
from the 1930’s and early 1940’s classified as quasi-contractual or
personal, actions seeking recovery of wrongfully taken movables or
proceeds of involuntary alienation of movables.
20 See, e.g., McGuire v. Monroe Scrap Material Co., 189 La. 573, 180
So. 413 (1938) (characterizing as delictual an action for value of movable
property alleged to have been illegally and fraudulently appropriated);
Carter-Allen e Oo. V. treet, 165 La. 887, 116 So. 222 (1928)
(characterizing as delictual an action by jeweler alleging that salesman
stole customer's ring or permitted someone else to steal it through his
negligence).
21 See, e.g., Kramer v. Freeman, 198 La. 244, 3 So.2d 609(1941)
(plaintiff seeking recovery of wrongfully taken movables had cause of
action in tort and quasi-contract, with pleadings indicating a waiver of
tort action); Smith v. Phillips, 175 La. 198, 143 So. 47 (1932) (action by
former homeowner to recover portion of proceeds of Sheriff’s sale as
homestead exemption characterized as personal action subject to ten-year
liberative prescription under civil Code article 3544 (1870)).
App. 19
Nevertheless, a 50-year old Louisiana Supreme Court
case, Faison v. Patout,” appears to be the most recent
pronouncement on point, and it supports our reading of
the Civil Code and Professor Yiannopoulos’ reading as
well. In Faison, Mrs. Hypolite Patout executed a manual
donation of her jewelry to her two daughters. Following
the donor’s death, one of her sons, Sebastian Patout,
suggested to his sisters that it was unsafe for them to keep
this jewelry in one sister’s bedroom; so, with his sisters’
permission, Sebastian put the jewelry in his bank safety
deposit box. Sebastian died some twelve years later,
whereupon his widow removed the jewelry from the
safety deposit box and refused to give it to the sisters. In
the sisters’ suit to recover the jewelry, the trial court held,
and the Louisiana Supreme Court agreed, that the sisters
were the true owners. More significant to our
consideration today, the Patout defendants (children of
Mrs. Hypolite Patout’s sons) had pled _liberative
prescription under Louisiana Civil Code article 3544
(1870). They contended that their aunts’ action was
personal and thus had prescribed because more than ten
years had elapsed between the time the property left the
aunts’ possession and the time suit was filed. Rejecting
this contention, the Supreme Court wrote:
There might be some merit in a plea of prescription _
if Sebastian Patout had possessed the property for
himself and the other heirs, and adversely to [his
sisters], but the record convinces us that he was
acting as depository for his two sisters, these
22 212 La. 37, 31 So.2d 416 (1947).
App. 20
plaintiffs, and that his possession of the property
was for their benefit--for them, and not in his own
Mame or right. ‘
Counsel for defendants is in error in his contention
that the ten-year [liberative] prescription under
article 3544 commenced to run in March 1931
[when Sebastian took possession of the jewelry].
[Acquisitive] [p]rescription began to run when
plaintiffs were first denied delivery of this jewelry
in June 1942, after the death of their brother,
Sebastian Patout, and this suit was filed in
December 1942, about six months later.#
In thus rejecting the defendants’ plea of liberative
prescription, the Louisiana Supreme Court clearly
recognized that the concepts of precarious possession and
acquisitive prescription applied to this action for the
recovery of movable property, even though the court did
not use these terms of art. The facts in Faison are closely
analogous to the situation before us today, and the
holding of the Louisiana Supreme Court in Faison--the
most recent pronouncement by the highest court of the
state--is instructive despite being non-binding due to the
inapplicability of the common law doctrine of stare
decisis.”4
23 Id. at 418-19 (emphasis added).
24 See also Jeanfreau v. Jeanfreau, 182 La. 332, 162 So. 3 (1935) (owner
of motorboat made simulated title transfer to his brother “for convenience
sake only,” never intending to relinquish actual ownership. In true
owner's suit to recover the boat, defendant’s plea of acquisitive
prescription of three years under Louisiana Civil Code articles 496, 3506,
ee Se
App. 21
In sum, even though some decisions of the Louisiana
Supreme Court have treated actions for recovery of
movables as personal (delictual and occasionally as quasi-
contractual), other decisions of that court have found that
such actions are properly considered to assert claims of
ownership and therefore are subject only to acquisitive
prescription. Despite its age, Patout is still the most recent
Louisiana Supreme Court pronouncement on point, and it
so held. But regardless whether the most recent
pronouncement of the Louisiana Supreme Court supports
our analysis of the Civil Code and that of Professor
Yiannopoulos, there is simply no jurisprudence constante
on the question. It follows, then, that our Erie-bound
decision to follow the plain wording and indisputable
structure of the Louisiana Civil Code and Professor
Yiannopoulos’ analysis is either supported by or at least
does no violence to Louisiana’s jurisprudence as a
secondary source of law. To the extent that our decision
today may constitute an “Erie guess,” we take additional
comfort in the observation that almost 60 years have
passed since the Louisiana Supreme Court last applied
liberative prescription to actions claiming ownership or
possession of movable property--a span of years
attributable at least in part, we assume, to the broad
reliance in recent decades on Professor Yiannopoulos’
doctrinal work on this subject.
and 3476 (1870) recognized implicitly by Louisiana Supreme Court as
proper).
App. 22
[3] As SongByrd’s “Petition in Revendication” sought
recognition of its purported ownership interest in the
Baton Rouge master recordings and _ recovery of
possession of those recordings, and only incidentally
sought damages resulting from Bearsville’s contravention
of SongByrd’s alleged ownership interest, we hold that, as
a fundamental matter of Louisiana property law,
SongByrd’s action is not subject to liberative prescription.
D. Termination of Precarious Possession and Actual
Notice
[4] This foundational holding does not end our
analysis in the instant case, however. In addition to its
failure to characterize SongByrd’s suit as a real action and
its concomitant error in applying the rules of liberative
prescription, the district court also missed the mark in its
treatment of SongByrd’s assertion that Bearsville was and
is only a precarious possessor. To situate the concept of
precarious possession in its proper Civilian context, we
again return to basics. As Professor Yiannopoulos
explains, a defendant in possession (such as Bearsville)
may defend a revindicatory action for the recovery of
movable property by (1) asserting some right, be it
personal or real, to possess the movable, or (2) claiming
that he is in fact the owner of the movable by virtue of,
e.g., a transfer from the owner, acquisitive prescription, or
some other mode of acquiring ownership.> No such
defenses have been proffered by Bearsville; but if, on
25 Id. § 354, at 687.
App. 23
remand, it should assert the defense of acquisitive
prescription, the district court will have to address
SongByrd’s contention--made both in its original petition
and in opposition to Bearsville’s motion to dismiss--that
Bearsville is and always has been nothing more than a
precarious possessor.
Under the Civil Code, the concept of “precarious
possession” is defined within Title XXIII of Book III, “Of
the Different Modes of Acquiring the Ownership of
Things,” as “the exercise of possession over a thing with
the permission of or on behalf of the owner or
possessor.” A precarious possessor is presumed to
possess for another,” but precarious possession may be
terminated or converted to possession on one’s own
behalf in either of two specific ways. First, a precarious
possessor who is a co-owner (or his universal successor)
may terminate his precarious possession, and thus begin
to possess for himself alone, only when he demonstrates
his intent to possess for himself by “overt and
unambiguous acts sufficient to give notice to his co-
owner.”28 Second, a precarious possessor who is not a co-
2 La.Civ.Code art. 3437.
27 La.Civ.Code art. 3438. Conversely, “[o]ne is presumed to intend to
possess as owner unless he began to possess in the name of and for
another.” La.Civ.Code art. 3427 (emphasis added). This presumption set
forth in article 3427 in favor of a person who exercises factual authority
does not arise, however, when “there is proof that the possession was
precarious at its inception.” Yiannopoulos, supra, § 370, at 617.
28 La.Civ.Code art. 3439.
App. 24
owner is held to a higher standard and only “commences
to possess for himself when he gives actual notice of this
intent to the person on whose behalf he is possessing.”
In the instant case, then, should Bearsville assert that
it acquired ownership of the master recordings by
acquisitive prescription of either three or ten years,
pursuant to Louisiana Civil Code Articles 3489-91, it will
have to overcome SongByrd’s assertion, so far supported
by Quint Davis’ affidavit, that Davis and Dinkins
delivered the master recordings to Bearsville intending
only for Bearsville to possess the tapes precariously.
Bearsville may, of course, assert that (1) it was never a
precarious possessor, or (2) even if it was a precarious
possessor initially, at some point it terminated its
precarious possession and began to possess for itself.
Either way, Bearsville will have the burden of proving
facts sufficient to support such a defense.
[5] It is the non-co-owner context in which we finally
address the district court’s alternative--and, strictly
29 Id. (emphasis added). Another respected Louisiana commentator
has observed (1) that the “actual notice” required to convert precarious
possession to adverse possession constitutes a more stringent standard
than was needed prior to the 1983 revision of Title XXIII of Book III of the
Louisiana Civil Code dealing with occupancy, possession and acquisitive
prescription, Symeon Symeonides, Property, 46 La.L.Rev. 655, 680 (1986),
and (2) that the “overt and unambiguous acts sufficient to give notice”
standard imposed on co-owners is “a less exacting burden of proof” than
the “actual notice” standard imposed on other precarious possessors.
Symeon Symeonides, One Hundred Footnotes to the New Law_of
Possession and Acquisitive Prescription, 44 La.L.Rev. 69, 86 (1983).
Peery ee
App. 25
speaking, premature--holding that Bearsville’s failure to
respond to Dinkins’ letters requesting return of the tapes
in 1975 and its later licensing agreements with Rounder
and Rhino, constituted “actual notice” sufficient to
convert Bearsville’s precarious possession as a matter of
law. This ruling, we observe, is clearly inconsistent with
Louisiana law.
[6] We have not been able to locate (and Bearsville has
not cited to us) a single Louisiana case that supports the
novel proposition that alone either (1) a minimal,
apparently clandestine action--such as entering into a
contractual agreement with a third party to enjoy the
fruits of a movable without directly informing the owner
of the movable of that agreement--or (2) mere inaction in
the face of a request for a return of the movable to its
owner, can somehow constitute “actual notice” for
purposes of terminating precarious possession of the
movable of a non-co-owner.% To the contrary, recent
Louisiana cases concerning termination of precarious
possession reflect that the notice burden imposed on
30 The two cases cited by Bearsville which held that mere silence or
passivity is insufficient to bring the doctrine of contra non valentum into
play are clearly inapposite as that doctrine concerns the interruption of
liberative prescription of personal actions not acquisitive prescription in
the context of real actions. See Cyr v. Louisiana Intrastate Gas Corp., 273
So.2d 694, 697-98 (La.Ct.App. 1st Cir. 1973); Colley v. Canal Bank & Trust
Co., 159 F.2d 153, 154 (St Cir. 1947).
App. 26
precarious possessors in such instances is much more
stringent.*! As one court put it,
a possessor whose possession begins other than as
an owner must do something to make generally
known that he has changed his intent and he must
prove specifically when he manifested to others his
intent to possess as owner. Continued physical
possession alone does not suffice to rebut the
presumption that the possession remains
precarious. The character and notoriety of the
possession must be sufficient to inform the public
and the record owners of the possession as
owner.”
We therefore conclude that actual notice sufficient to
convert or terminate precarious possession cannot be
31 See e.g., Robin v. Finley, 597 So.2d 178, 180 (La.Ct.App. 3*¢ Cir.
1992) (“actual notice” sufficient to begin acquisitive prescription not given
until precarious possessors filed a possessory action); Satsuma Pentecostal
Church v. Harris, 563 So.2d 1247, 1249 (La.Ct.App. 15 Cir. 1990) (church
that was a precarious possessor did not begin to possess for itself for
purposes of instituting a possessory action under La.Code Civ. Proc. art.
3658(2) until church’s representative voiced objection to owner's proposed
sale of property and clearly notified owner that church claimed
ownership); Morris v. Sonnier, 546 So.2d 1296, 1300 (La.Ct.App. 1st Cir.
1989) (acts of corporeal possession are insufficient to constitute “actual
notice” for precarious possessors who began possession as lessees); Feazel
v. Howard, 511 So.2d 1306, 1308-09 (Ct. App. 2™ Cir.), writ denied, 514
So.2d 456 (La.1987) (precarious possessor did not give “actual notice” to
owner that he intended to possess for himself as he admitted at trial that
he never made an assertion of ownership of disputed tract).
32 Hammond v. Averett, 415 So.2d 226, 227 (La.Ct.App. 2°4 Cir. 1982)
(citations omitted).
App. 27
based solely on either minimal and apparently clandestine
actions such as those described above or on merely
standing mute in the face of a direct inquiry or request for
return of the property.
This is not to say, of course, that the defendant may
not refer to these facts in a subsequent motion for
summary judgment or a full evidentiary hearing should
Bearsville eventually assert that at some point it began to
possess the master recordings for itself and gave
SongByrd’s predecessors-in-interest actual notice of such
an intention. Doubtless these facts and others will have to
be considered by the trier of fact in resolving such an
acquisitive prescription defense in general and the actual
notice issue in particular. We simply hold today that the
limited evidence presented to the district court on
Bearsville’s motion to dismiss-cum-summary judgment,
on the ground of liberative prescription, was insufficient
to determine that Bearsville satisfied the high burden of
proof necessary to establish that it gave SongByrd’s
predecessors-in-interest actual notice of its intent
thenceforth to possess for itself, converting its precarious
possession to adverse possession for the purpose of
acquisitive prescription.
Il.
CONCLUSION
For the reasons stated above, we reverse the district
court’s grant of summary judgment in favor of Bearsville
and remand the case for further proceedings consistent
with this opinion. On remand, the district court is free to
App. 28
address the personal jurisdiction question that it
pretermitted in its summary judgment ruling, an issue
which is not before us on this appeal and on which we
express no opinion at this juncture.
REVERSED and REMANDED.
App. 29
Appendix C
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
23 F.Supp.2d 219
SONGBYRD, INC., Plaintiff,
v.
ESTATE OF ALBERT B. GROSSMAN, dba
Bearsville Records, Inc., Defendant.
Oct. 21, 1998
Heslin & Rothenberg, P.C., Albany, NY (Robert E.
Heslin, of counsel), Justin A. Zitler, New Orleans, LA, for
Plaintiff.
Ryan, Orlando & Smallacombe, LLP, Albany, NY.
(Melissa J. Smallacombe, Mario D. Cometti, of counsel),
Simon, Peragine, Smith & Redfearn, New Orleans, LA
(Christina H. Belew, of counsel), for Defendant.
HOMER, United States Magistrate Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff SongByrd, Inc. (“SongByrd”) brought this
action seeking monetary damages-and a declaration of
rights in certain recorded music tracks. Presently pending
is a motion by defendant Estate of Albert B. Grossman,
doing business as Bearsville Records, Inc. (“Bearsville”)
App. 30
for summary judgment pursuant to Fed.R.Civ.P. 56 on the
ground that the action is barred by the applicable statute
of limitations. Docket No. 40. SongByrd opposes the
motion. Docket No. 43. For the reasons which follow, the
motion is granted.
I. Facts!
This case concerns the possession, ownership, and
usage of several master recordings of musical
performances made in the early 1970’s by New Orleans
musician Henry Roeland Byrd, who was professionally
known as “Professor Longhair” (“Byrd”).? The tapes were
produced in a Baton Rouge, Louisiana recording studio
and soon thereafter came into the possession of a
predecessor in interest to Bearsville located in Woodstock,
New York. Over time several requests have been made by
representatives of Byrd to secure return of the tapes.
Cometti Aff. (Docket No. 40), ¥ 10. It is unclear what if
any response those requests received, but the tapes have
remained in the physical custody of Bearsville
continuously since the 1970's. Id. at ¥ 11.
In August 1986, Bearsville licensed certain of the
master recordings to Rounder Records Corporation, which
1 The undisputed facts of this matter, including its musical
background and context, are detailed in an earlier opinion from the Fifth
Circuit. Court of Appeals. See SongB Inc. v. Bearsville Records, Inc.,
104 F.3d 773, 774-75 (5% Cir.1997).
2 SongByrd incorporated in 1993 and conducts business as a
successor in interest to Byrd.
App. 31
in 1987 released an album of Byrd’s music produced from
the recordings. Cometti Aff., J 12. In 1991, another
recording based on the disputed master recordings was
released by Rhino Records. That release was made
possible by a licensing agreement between Bearsville and
the production company. Id. at ¥ 13.
II. Procedural Background
Originally filed in Louisiana state court in 1995, this
action was removed by Bearsville to the United States
District Court for the Eastern District of Louisiana.
Docket No. 1. Bearsville then moved pursuant to
Fed.R.Civ.P. 12(b) to dismiss the claim on the ground that
the court lacked personal jurisdiction and the claim was
barred by Louisiana’s period of prescription.? The district
court held that the action was barred by the applicable
prescriptive period and granted the motion without
addressing the jurisdictional question. SongByrd, Inc. v.
Bearsville Records, Inc., Civ.A. No. 95-3706, 1996 WL
337259 (E.D.La. June 18, 1996). SongByrd appealed and
the Fifth Circuit Court of Appeals reversed, holding that
the claim was not prescribed under Louisiana law. 104
F.3d 773, 779 (5 Cir.1997). On remand, the district court
considered the question of personal jurisdiction,
concluded that jurisdiction was lacking, and transferred
3 The period of prescription in civil law jurisdictions like Louisiana is
roughly synonymous with the common law concept of a statute of
limitations. See FDIC v. Barton, 96 F.3d 128, 131 n. 2 (5t Cir.1996).
App. 32
the action to this district. Docket No. 40, Ex. E. The
present motion followed.
III. Summary Judgment Standard
Under Fed.R.Civ.P. 56(c), if there is “no genuine issue
as to any material fact ... the moving party is entitled to
judgment as a matter of law, ... where the record taken as
a whole could not lead a rational trier of fact to find for
the non-moving party.” See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). The moving party bears the burden of
demonstrating that no genuine issue of material fact
exists. FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994);
see also Heyman v. Commerce & Indus. Ins. Co., 524 F.2d
1317, 1320 (2d Cir.1975). Once the movant has come
forward with sufficient evidence in support of the motion
for summary judgment, the opposing party must ‘set forth
specific facts showing that there is a genuine issue for
trial” and cannot rest on “mere allegations or denials” of
the facts asserted by the movant. Fed.R.Civ.P. 56(e);
Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26
(2d Cir.1994). |
The trial court must resolve all ambiguities and draw
all reasonable inferences in favor of the non-movant.
American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc.,
42 F.3d 725, 728 (2d Cir.1994); see also Eastway Constr.
Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985).
“Furthermore, the non-movant ‘will have his allegations
taken as true, and will receive the benefit of the doubt
when his assertions conflict with those of the movant.
44
App. 33
Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.1996) (citations
omitted).
IV. Discussion
A. Choice of Law
When venue is originally placed in one jurisdiction
and then transferred to another, it is generally the law of
the transferor jurisdiction that applies in the new court.
Ferens v. John Deere Co., 494 U.S. 516, 523, 110 S.Ct. 1274,
108 L.Ed.2d 443 (1990); Van Dusen v. Barrack, 376 U.S.
612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). An exception
exists when the transfer is made on the ground that the
venue was improperly laid in the first instance, i.e., that
the original court lacked personal jurisdiction over the
defendant, rather than simply for the convenience of the
parties. In those cases the transferee court applies the law
of the forum in which it sits. Trierweiler v. Croxton &
Trench Holding Corp., 90 F.3d 1523, 1532 (10 Cir. 1996);
Muldoon v. Tropitone Furniture Co., 1 F.3d 964, 967 (9th
Cir. 1993); Manley v. Engram, 755 F.2d 1463, 1467 n. 10
(11 Cir. 1985); Davis v. Louisiana State Univ., 876 F.2d
412, 414 (5 Cir. 1989). The exception applies here because
this action was transferred on the ground that the
Louisiana court lacked jurisdiction. Docket No. 40, Ex. E.
Both parties agree that under these circumstances,
disposition of this case is governed by New York law. *222
B. New York Statute of Limitations
This action is governed by the three-year statute of
limitations for recovery of chattel provided in N.Y. Civ.
App. 34
Prac. L. & R. § 214(3) (McKinney 1990) Johnson _v.
Smithsonian Inst., 9 F. Supp.2d 347, 354 (S.D.N.Y. 1998)
(New York statute of limitations for conversion and
replevin is three years). The issue presented here is when
the claim accrued for statute of limitations purposes.
The statute of limitations for conversion begins to run
at the time of the conversion. Sporn v. MCA Records, Inc.,
58 N.Y.2d 482, 462 N.Y.S.2d 413, 416, 448 N.E.2d 1324
(1983); see also Vigilant Ins. Co. of Am. v. Housing Auth.
of the City of El Paso, Tex., 87 N.Y.2d 36, 637 N.Y.S.2d 342,
347, 660 N.E.2d 1121 (1995). In Sporn, New York’s Court
of Appeals was presented with a case very similar to the
case at bar. There, the plaintiff, the successor in interest to
the purported owner of rights in certain master
recordings, sued the defendant record company for
commercially exploiting the master recordings contrary to
the plaintiff’s interests. Sporn, 462 N.Y.S.2d at 414-15, 448
N.E.2d 1324. The record company defended on the
ground that the three-year limitations period had begun
to run at the time it began using the master recordings
contrary to the plaintiff's purported interest and had
expired prior to the commencement of the action.
Holding that the statute of limitations for conversion
begins to run at the time of the conversion, the Court of
Appeals affirmed the grant of summary judgment in favor
of the record company. Id. 462 N.Y.S.2d at 416.
SongByrd contends that Solomon _R. Guggenheim
Found. v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 569
N.E.2d 426 (1991) (“Guggenheim”), not Sporn, governs
this action. In Guggenheim, the New York Court of
App. 35
Appeals held that “a cause of action for replevin against a
good-faith purchaser of a stolen chattel accrues when the
true owner makes demand for return of the chattel and
the person in possession of the chattel refuses to return
it.” Id. 567 N.Y.S.2d at 626. SongByrd argues that under
Guggenheim the statute of limitations does not begin to
run until after a demand for return has been refused, that
such a demand has been made but not refused here and as
a result the limitations period has not yet begun to run.
Guggenheim, however, addresses the different
circumstance of possession of a chattel by a bona fide
purchaser for value and does not, therefore, provide the
controlling rule of law here.
Guggenheim, in fact, recognized that a different rule
applies when the stolen chattel remains in the possession
of the thief. Citing Sporn, the court stated that in such a
circumstance the statute of limitations begins to run from
the time of the theft. Guggenheim, 567 N.Y.S.2d at 626,
569 N.E.2d 426. Here, the chattel at issue has remained in
the possession of Bearsville, the party alleged to have
committed the wrongful taking. There is no evidence that
Bearsville was ever a bona fide purchaser for value. Thus,
the statute of limitations here began to run at the time
Bearsville converted the master recordings. See Vigilant
Ins. Co., 637 N.Y.S.2d at 347, 660 N.E.2d 1121 (in a case not
involving a bona fide purchaser, a conversion claim
accrues at the time of the conversion). Thus, Guggenheim
is limited to circumstances involving a bona fide
purchaser’s possession of the chattel.
App. 36
Having concluded that SongByrd’s conversion claim
accrued at the time of the conversion, the question
becomes when the master recordings were allegedly
converted. “The tort of conversion is established when
one who owns and has a right to possession of personal
property proves that the property is in the unauthorized
possession of another who has acted to exclude the rights
of the owner.” Key Bank of N.Y. v. Grossi, 227 A.D.2d
841, 642 N.Y.S.2d 403, 405 (3d Dep’t 1996). A party acts to
the exclusion of the rights of another by exercising
dominion and control over the property that is
inconsistent with the interests of the true owner. Shaw v.
Rolex Watch, U.S.A., Inc., 673 F. Supp. 674, 682 (S.D.N.Y.
1987). Accepting this definition of conversion, the
decisive issue is when Bearsville began unauthorized
possession of the master recordings.
Bearsville undeniably had lawful and authorized
possession of the master tapes when they were first
transferred to its predecessor in 1972. In August 1986, the
master recordings were licensed by Bearsville to Rounder
Records. The result of this agreement was the 1987 release
of an album of Byrd’s music taken from the master
recordings. This licensing agreement clearly
demonstrated Bearsville’s intent to exercise control over
the Byrd recordings to the exclusion of SongByrd. See
Jaywyn Video Productions, Ltd. v. Servicing All Media,
Inc., 179 A.D.2d 397, 577 N.Y.S.2d 847, &) + (1st Dep’t 1992)
(licensing of property rights demonstrates exercise of
dominion and control). Any claim for conversion,
therefore, accrued no later than August 1986 and was
App. 37
time-barred at the time this action was filed in 1995.4 That
SongByrd may not have known of the conversion at the
time it occurred is of no moment. Two Clinton Squar
Corp. v. Frieder, 91 A.D.2d 1193, 459 N.Y.S.2d 179 (4th
Dep’t 1983); Memorial Hosp. v. McGreevy, 152 Misc.2d
127, 574 N.Y.S.2d 923, 925 (1991) (claim accrues at time of
conversion “even though the plaintiff may have been
unaware of the occurrence.”).5
Where, as here, “[t]he conduct of the defendant
certainly constituted a denial of both the plaintiff's right
to the master recording and a total usurping of plaintiff's
right to possess the master recording,” the claim is
properly stated as one for conversion. Sporn, 462
N.Y.S.2d at 416, 448 N.E.2d 1324. That claim is clearly
untimely. The time-bar arose in August 1989, three years
following the licensing agreement with Rounder Records.®
‘ SongByrd has not argued that any tolling provision applies here.
5 SongByrd’s assertion that the decision from the Fifth Circuit
precludes consideration of the licensing agreement's effect on the statute
of limitations is misplaced. That decision concerned Louisiana law, not
the New York law applicable here.
6 In the alternative the conversion occurred no later than August
1991 when Bearsville licensed the master recordings to Rhino Records.
That agreement resulted in the 1991 Rhino Records release of an album
containing seven tracks produced from the master recordings. The exact
date of the Rhino Records licensing deal is not clear in the record but
necessarily occurred in or before 1991. Thus, with 1991 as the date of
conversion, SongByrd’s claim was time-barred prior to the
commencement of this action in 1995.
App. 38
Conversion is not a continuing wrong for which every
new act that might constitute conversion restarts a new
limitations period. Tinker v. Abrams, 640 F. Supp. 229,
232 (S.D.N.Y. 1986) (citing Sporn, 462 N.Y.S.2d at 415-16,
448 N.E.2d 1324). Here, SongByrd simply failed to
commence this action within the applicable statute of
limitations. Bearsville’s motion must, therefore, be
granted.
V. Conclusion
WHEREFORE, for the reasons set forth above, it is
hereby ORDERED that the defendant’s motion for
summary judgment is GRANTED; and
IT IS FURTHER ORDERED that the Clerk of the
Court serve a copy of this order, by regular mail, upon all
parties to this action.
IT IS SO ORDERED.
App. 39
Appendix D
United States Court of Appeals
For the Second Circuit.
SONGBYRD, INC., Plaintiff - Appellant,
v.
ESTATE OF ALBERT B. GROSSMAN, dba
Bearsville Records, Inc., Defendant — Appellee.
No. 98-9544
Summary Calendar.
Mar. 10, 2000.
Appeal from the U.S. District Court for the Northern
District of New York.
Justin Asher Zitler, New Orleans, LA. (Heslin,
Rothenberg Law Firm, Albany, N.Y., on the brief), for
plaintiff-appellant.
Mario D. Cometti, Ryan & Smallacome, LLP, Albany,
N.Y., for defendant-appellee.
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
App. 40
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.! 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.
Background
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-
1 The caption of the case in this Court refers to Grossman’s estate
doing business as “Bearsville Records, Inc.” See SongByrd, Inc. v.
Bearsville Records, Inc., 104 F.3d 773, 774 (5% Cir. 1997). The latter
designation appears to be more accurate since Bearsville Records, Inc., has
been dissolved. See id. at 775. The transfer order entered by the District
Court for the Eastern District of Louisiana also noted that the case
caption’s reference to the estate as doing business as Bearsville Records,
Inc. is incorrect.
App. 41
barred.” The late Henry Roeland Byrd, known
professionally as “Professor Longhair,” enjoyed some
success as a recording artist in New Orlean: in the 1940’s
and 1950’s. 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 1970’s, 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
2 A more extensive factual history is set forth in a Fifth Circuit
opinion at an earlier stage of this litigation. See SongByrd, Inc. v.
Bearsville Records, Inc., 104 F.3d 773, 774-75 (5t Cir. 1997) (“SongByrd 1”).
App. 42
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.* 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.
3 The plaintiff's complaint recounts the unusual circumstances under
which the tapes went from Grossman’s possession to that of his estate:
“Upon information and belief, tragically dying en route [from a European
music conference], Albert Grossman lay in state [sic] at Heathrow Airport
in London. Upon claiming the corpse, Sally Grossman, widow of Albert
Grossman, discovered the Baton Rouge recording sesion tapes clutched to
the deceased body.” Complaint, §] XVII
App. 43
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
App. 44
defense,* 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
4 Applying provisions of Louisiana’s Civil Code, the Fifth Circuit
ruled that SongByrd’s suit seeking recognition of ownership of movable
property was as “innominate real action” and that the applicable
“prescription” (type of limitations) was “aquisitive” and not “liberative.”
Therefore, only adverse possession without notice and not merely lapse of
a specified time interval without a claim could defeat SongByrd’s
ownership claim. On the then-existing record, the Court ruled that
SongByrd’s contention that the Estate was only a “precarious possessor”
(bailee) of the tapes had not been rebutted. The Court noted that the
Estate could still defeat SongByrd’s claim by showing “aquisitive
prescription” i.e., actual notice to the, public and SongByrd that the Estate
intended to possess the tapes as owner. See SongByrd I, 104 F.3d at 777-
81.
App. 45
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”).
Discussion
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 meritn of the personal
jurisdiction ruling?
1. Reviewability
App. 46
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 availale,5 but
5 Our Court has acknowleged the availability of review of a transfer
order in the transferor circuit by petition for mandamus, but has also been
markedly reluctant to grant the writ. See Pfizer, Inc. v. Lord, 447 F.2d 122
(2d Cir. 1971); Golconda Mining Corp. v. Herlands, 365 F.2d 865 (2d Cir.
1966); A. Olinick & Sons v. Dempster Brothers, Inc., 365 F.2d 439 (2d Cir.
1966). Judge Friendly deemed mandamus unavailable to review the
district judge’s exercise of discretion to order a transfer, believing such
review available “only when there is an issue of transferability or a
substantial claim that the judge has refused to exercise or usurped judicial
power.” Id. at 447-48 (Friendly, J., concurring). Arguably, a transfer for
lack of personal jurisdiction is more amenable to mandamus review than a
typical transfer under 28 U.S.C. § 1404(a) for the convenience of parties
and witnesses, although we have at least once issued mandamus in the
latter circumstance, see In re Warrick, 70 F.3d 736, 740-41 (2d Cir. 1995).
We have acknowleged the availability of review of a transfer order under
28 U.S.C. § 1292(b) when “it is urged that the court considered improper
factors in making its decision to transfer.” Red Bull Associates v. Best
Western International, Inc., 862 F.2d 963, 965 n.4 (2d Cir. 1988); see Farrell
v. Wyatt, 408 F. 2d 662, 665 (2d Cir. 1969) (“[W]hen the question is the
district court’s power [to transfer], a proper- -although not exclusive- -
procedural approach is to seek an interlocutory appeal under 28 U.S.C. §
1292(b).”).
Where a transfer request has been rejected, our Court has
entertained, but denied, a petitiom for mandamus to compel a transfer.
See Lykes Bros. Steamship Co. v. Sugarman, 272 F.2d 679, 682 (2d Cir.
1959).
_ App. 47
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
(10% Cir. 1996); United States v. Copley, 25 F. 3d 660, 662
(8 Cir, 1994); Brock v, Entre Computer Centers, Inc., 933
F. 2d 1253, 1257 (4% Cir. 1991); Moses v. Business Card
App. 48
Express, Inc., 929 F.2d 1131, 1136 (6 Cir. 1991); National-
Standard Co. v. Adamkus, 881 F.2d 352, 356 (7 Cir. 1989);
Nascone v. Spudnuts, Inc., 735 F.2d 763, 766 (3d Cir. 1984);
Roofing & Sheet Metal Services, Inc. v. La Quinta Motor
Inns, Inc., 689 F. 2d 982, 989 (11% Cir. 1982); cf. Hill _v.
Henderson, 195 F.3d 671, 677 & n.2 (D.C. Cir. 1999) (“If the
party transferred against its will to a new court failed to
move for retransfer, the omission might waive any claim
on the subject.”) (emphasis added) But see American
Fidelity Fire Insurance Co. v. United States District Court,
538 F.2d 1371, 1377 n.4 (9% Cir. 1976) (“On appeal from a
final judgment we may exercise our appellate jurisdiction
to review a district court’s transfer order, even if the
transferor court is not wilhin our circuit.”). See generally
17 Moore § 111.64 [2] [b]. The rationale for this rule is that
a court of appeals normally has no jurisdiction to review
the decision of a district court in another circuit, but may
review a ruling by the transferee court denying retransfer.
See Roofing & Sheet Metal Services, Inc., 689 F.2d at 986
(citing 28 U.S.C. § 1294(1), which provides that, with
exceptions not relevant to this case, “appeals from
reviewable decisions of the district and territorial courts
shall be taken to the courts of appeals... [f]rom a district
court... to the court of appeals for the circuit embracing
the district”) Purex Corp. v. St. Louis National Stockyards
Co., 374 F.2d 998, 1000 (7 Cir. 1967) (noting the lack of a
motion to retransfer); Preston Corp. v. Rease, 335 F.2d 827,
828 (4th Cir. 1964) (noting the lack of a “motion for
remand”).
App. 49
The Second Circuit has not ruled on whether a
transfer order may be reviewed on appeal from a final
judgment without a request in the transferee district court
for retransfer. In D’Ippolito, we noted that a transfer order~ ~
of a district court in this Circuit would be reviewable in
the transferee Circuit on appeal from a final judgment if
the transferee district court denied a motion to retransfer.
See 401 F.2d at 795. We thus contemplated a retranafer
motion, but did not then explicitly require one. With the
issue now before us, we think a retransfer motion should
be required. Once the case has been transferred,
subsequent developments might make _ retransfer
appropriate, and the requirement of a retransfer motion
obliges the party opposing che initial transfer to make
6 The efficacy of a retransfer motion to preserve the transfer issue for
review on appeal from a final judgment was placed in some doubt by
dictum in Kotlicky v. United States Fidelity & Guaranty Co., 817 F.2d 6, 7
n.1 (2d Cir. 1987). On appeal from the denial of a Rule 60(b) motion to
vacate a final judgment (an appeal that does not bring up for review the
rulings that preceeded entry of the judgment, see Branum v. Clark, 927
F.2d 698, 704 (2d Cir. 1991)), we properly declined to review the denial of
a retransfer motion (which would have been available for review on
appeal from the judgment). However, we said that the review of the
retransfer denial was unavailable because such rulings “are interlocutory
and not appealable except by certification under 28 U.S.C. § 1292(b), or by
petition for mandamus.” Id. (citations omitted). That dictum was correct
only to the extent of noting the unavailability of interlocutory appeal of
transfer orders; it was incorrect in suggesting that review of a retransfer
order was unavailable on appeal from a final judgment. The dietum did
not reckon with D'Ippolito’s contemplation of such review. See
D‘Ippolito, 401 F.2d at 765. We decline to elevate that dictum to a holding.
App. 50
clear that its opposition in che transferor court was
serious, and affords the transferee court an opportunity to
assess the then-current circumstances.” However, since
we have not imposed such a requirement in the past and
since the Estate does not claim that the lack of a retransfer
motion forfeits SongByrd’s opportunity for review, we
will entertain SongByrd’s challenge to the transfer ruling.
The Estate challenges the reviewability of the transfer
order only on the ground that SongByrd’s notice of appeal
does not explicitly refer to that order. This ground for
challenge lacks merit. The notice of appeal recites that
7 A district court considering a retransfer motion might be limited by
“law of the case” principles, at least in the absence of changed
circumstances. See Christianson v. Colt Industries Operating Corp., 486
U.S. 800, 816 (1988) (“[T]he policies supporting the [law of the case]
doctrine apply with even greater force to transfer decisions than to
decisions of substantive law; transferee courts that feel entirely free to
revisit transfer decisions of a coordinate court threaten to send litigants
into a vicious circle of litigation.”). Compare Hill, 195 F.3d at 677 (“[A]t
the time of a motion to retransfer the transfer order would be law of the
case binding the second district court (in the absence of clear error or
manifest injustice...”), Chrysler Credit Corp. v. Country Chrysler, Inc., 928
F.2d 1509, 1518 (10% Cir. 1991), and Nascone, 735 F.2d at 765-66, with
Roofing & Sheet Metal Services, Inc., 689 F.2d at 989 (“Although... a
district court cannot perform an appellate function by directly reviewing
the decisions of another district court, there is nothing to prevent [the
transferee district court] from independently considering a motion to
retransfer.”). On appeal, however, a court of appeals reviewing the denial
of a retransfer motion would not be limited by the law of the case, as
announced by the transferor district court. See Christianson, 486 U.S. at
816-17; Hill, 195 F.3d at 677; Nascone, 735 F.2d at n.9.
App. 51
SongByrd is appealing from the Memorandum-Decision
and Order, entered 21 October, 1998, granting Defendant's
Motion for Summary Judgment,” see Fed. R. App. P.
3(c)(1)(B) (notice of appeal must designate the judgment,
order, or part thereof being appealed) (emphasis added).
Upon entry of this Order, the Clerk’s Office inadvertently
neglected to prepare and enter a judgment, but the
absence of a separate judgment document may be waived,
see Bankers Trust Co. v. Mallis, 435 U.S. 381, 387-88
(1978), and a party may (but is not required to) appeal
from a dispositive order without awaiting entry of
judgment, see United states v. Interlink Systems, Inc., 984
F.2d 79, 82 (2d Cir. 1993). Just as a notice of appeal from a
final judgment brings up for review all reviewable rulings
“which produced the judgment,” 20 Moore § 303.21 [3][c],
at 303-47, a dispositive order clearly intended to end a
litigation should have a similar effect, see Badger
Pharmacal, Inc. v. Colgate-Palmolive Co., 1 F.3d 621, 626
(7% Cir. 1993).8
4. The Requisite -naowing to Reverse a Transfer
Ruling After Final Judgment
Courts discussing review of transfer rulings after
entry of a final Judgment have not always distinguished
between two closely related concepts: (1) the standard of
® A notice of appeal that explicitly refers to only one ruling
antecedent to either a final judgment or a dispositive order might limit
reviewability to the referenced ruling, see der v. CSX T rtation
Inc., 70 F.3d 255, 256 (2d Cir. 1995), but this limitation will not always
occur, see United States v. Vasquez, 145 F.3d 74, 79 (2d Cir. 1998).
App. 52
review to be applied to the decision granting or denying
transfer (or the decision of a transferee court denying
retransfer), and (2) the showing required to reverse a
transfer ruling. Although a transfer order for the
convenience of parties or witnesses under section 1404 (a)
is reviewed for abuse of discretion, see Filmline (Cross-
Country) Productions, Inc. v. United Artists Corp., 865
F.2d 513, 520 (2d Cir. 1989); 17 Moore § 111.63, a ruling on
personal jurisdiction is accorded plenary review, see.
Chaiken v. VV_ Publishing Corp., 119 F.3d 1018, 1025 2d
Cir. 1997); 17 Moore § 111.63, and a transfer order entered
because of lack of personal jurisdiction over the defendant
should therefore receive plenary review. Cf. Chaiken
® At one time our Court ruled that a district court lacking personal
jurisdiction had no power to transfer, see Goldlawr, Inc. v. Heiman, 288
F.2d 579, 586 (2d Cir. 1961), but the Supreme Court reversed that ruling
and made clear that a district court lacking both personal jurisdiction and
proper venue could transfer under section 1406(a) to a district where both
defects were avoided, see Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466
(1962). Thereafter, we ruled that, whether or not venue was proper, lack
of personal jurisdiction could be cured by transfer to a district in which
personal jurisdiction could exercised, with the transfer authority derived
from either section 1406(a) or section 1404(a). See Corke v. Sameiet M.S.
Song of Norway, 572 F.2d 77, 80 (2d Cir. 1978) (adopting Judge Weinfeld’s
view in Volk Corp. v. Art-Pak Clip Art Service, 432 F. Supp. 1179, 1181 &
nn.4-5 (S.D.N.Y. 1977)). See generally 17 Moore § 111.02[1][b).
The Tenth Circuit has ruled that authority to transfer for lack of
personal jurisdiction is provided by 28 U.S.C. § 1631 (1994), see Viernow
v. Euripides Development Corp., 157 F.3d 785, 793 (10 Cir. 1998), but the
legislative history of section 1631 provides some reason to believe that this
section authorizes transfers only to cure lack of subject matter jurisdiction.
See S. Rep. No. 97-275, at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 11, 40
App. 53
119 F.3d at 1025, 1030-31 (plenary review -accorded
personal jurisdiction issue in order to determine whether
law of transferor jurisdiction applied). Thus, with respect
to the transfer ruling in the pending case, which was
entered solely because the Louisiana court ruled that it
lacked personal jurisdiction over the Estate, plenary
review is warranted.
To obtain reversal of a transfer ruling (whether
granting or denying transfer) after entry of a final
judgment, the party urging reversal faces a formidable
task. In the context of a motion to transfer for the
convenience of parties or witnesses, we have indicated
that the party complaining of lack of a transfer would
have to “show that a different result would have been
reached had the suit been transferred,” Filmline, 865 F.2d
at 520 (internal quotation marks ominted) (quoting Ford
Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir. 1950)), and
the party opposing a transfer that was ordered would
similarly have “to show that it lost the case because of the
handicap of the transfer,” Magnetic Engineering, 178 F.2d
at 869 (discussing burden to be faced in the transferee
circuit). With respect to a transfer based on lack of
personal jurisdiction, the party opposing the transfer must
similarly demonstrate at least a high likelihood that the
(“Section 301 [section 1631] adds a new chapter to title 28 that would
authorize the court in which a case is improperly filed to transfer it to a
court where subject matter jurisdiction is proper.”); Levy v. Pyramid Co.
of Ithaca, 687 F. Supp. 48, 51 (N.D.N.Y. 1988) (Section 1631 limited to
subject matter jurisdiction transfers), aff'd without considerastion of this
point, 871 F.2d Cir. 1989).
App. 54
outcome of the litigation in the transferor court would
have been different from the outcome in the transferee
court, different not because of speculative concerns about
the likely predisposition of local judges and juries, but
because of substantive differences in outcome-
determinative law applicable to an issue governed by state
law.!° Such differences in substantive law are relevant
because in a transferred action the law of the transferor
jurisdiction applies, see Van Dusen v. Barrack, 376 U.S.
612, 639 (1964), only if the transferor court has personal
jurisdiction, see Chaiken, 119 F.3d at 1030; Levy v.
Pyramid.Co. of Ithaca, 871 F.2d 9, 10{2d Cir. 1989).™
Thus, in the pending cane, if SongByrd’s claim would
be time-barred under the law of both Louisiana and New
York, it would have no complaint that personal
jurisdiction was ruled lacking in Louisiana. In that event,
we would not need to review Judge Porteous’s jurisdiction
ruling. On the other hand, if Louisiana law accords
SongByrd a more generous limitations period than New
10 A defendant disputing personal jurisdiction in-the transferor court
would presumably not seek a transfer but would seek dismissal, as the
Estate did here. Upon dismissal, the plaintiff-appellant would have to
show only that personal jurisdiction existed, and no choice of law issue
would arise. In the pendeing case, the transfer was ordered sua sponte by
Jugde Poreous.
11 In Chaiken, the tranfer ruling itself was unopposed, see 119 F.3d at
1030, but, on appeal from a final judgment, the appallant claimed that
personal jurisdiction over the defendant would have been proper in the
trasnsferor district, not to secure a retransfer, but solely to have the benefit
of the substative law of the transferor jurisdiction.
App. 55
York, or at least affords it a significantly greater
opportunity to demonstrate that its claim is not time-
barred, then we would need no determine whether
personal jurisdiction in Louisiana was lacking, because the
more favorable substantive state law is applicable only if
personal jurisdiction exists in Louisiana.”
We could pause at this point and discuss fully
whether SongByrd’s claim survives in Louisiana but
encounters a time-bar in New York, but the opinion will
unfold more coherently if we turn to the issue of personal
jurisdiction, noting now only that the Fifth Circuit has
already given SongByrd substantial reason to believe that
its claim is not time-barred in Louisiana, and that our
subsequent discussion, see Part III, infra, will rule that the
claim is time-barred in New York.
II. Personal Jurisdiction
12 If personal jurisdiction existed in Louisiana (as well as in New
York), we would then face the issue whether to order a retransfer to
Louisiana or to decide the case here under applicable (though unfamiliar)
Louisiana law.
13 SongByrd did not argue before Magistrate Judge Homer that
personal jurisdiction was available in Louisiana, but, since we have
excused the failure to make a retransfer motion, the personal jurisdiction
issue has not been forfeited. In the District Court, the retransfer motion
would have turned on whether personal jurisdiction existed in Louisiana.
Without the need (in thisacase) for a retransfer motion, SongByrd was
entitled to think that it could challenge the Louisiana Court's jurisdiction
ruling on appeal from a final judgment without re-presenting the issue to
the District Court here.
App. 56
Whether the Estate is subject to long-arm jurisdiction
in Louisiana with respect to SongByrd’s cause of action
depends on whether Grossman would have been subject
to such jurisdiction during his lifetime. That proposition
is not self-evident,* and was at one time not the law, see
McMaster v. Gould, 240 N.Y. 379, 388 (1925); 6A Wright et
al., § 1565, at 479, but is true in most jurisdictions today,
see id., at least as to causes of action arising out of activity
of a decedent within the forum state, provided the forum
state extends its long-arm statute to executors for such
causes of action. See United States v. Montreal Trust Co.,
358 F.2d 239, 241 (2d Cir. 1966); Rosenfeld v. Hotel Corp.
of America, 20 N.Y. 2d 25, 281 N.Y.S.2d 308 (1967)
(upholding constitutionality of N.Y. C.P.L.R. 302(a)
(McKinney 1990)).
Long-arm jurisdiction over an executor with respect
to a cause of action against a decedent arising from
activity within the state exists in Louisiana. See La. Rev.
Stat. Ann. § 13-3201 (West 2000) (extending jurisdiction,
where otherwise applicable, to “nonresident”); id. § 3206
(defining “nonresident” to include an “executor,
administrator, or other legal representative” of an
individual.
14 Though an estate is liable for the debts of the decedent, it is
arguale that, since it has succeeded to the interests of the decedent by
operation of law and the fortuities of life, rather than by choice (such as in
a corporate acquisition), it should not be required to defend the decedent's
interests in a foreign forum. ,
App. 57
The parties agree that Louisiana’s personal
jurisdiction statute has regularly been interpreted by the
Louisiana courts to reach as far as the Due Process Clause
permits. See, e.g., Superior Supply Co. v. Associated Pipe
and Supply Co., 515 So. 2d 790, 792 (La. 1987). Thus the
issue is whether Grossman’s contacts with Louisiana
sufficed to satisfy due process requirements.!5
Grossman’s contacts with Louisiana, relevant to this
lawsuit, are extremely scant. He was never in Louisiana.
In New York, he heard demo tapes that had been made in
Louisiana, contacted Byrd and Byrd’s managers in
Louisiana, and invited them to come to New York to make
recordings. The recordings were unsatisfactory, and
thereafter Byrd’s managers sent the master tapes to
Grossman in New York. Nothing in the record (apart
from an unsupported allegation in the complaint)
suggests that the master tapes were sent at Grossman’s
request. Grossman retained possession of the master
tapes, without any contact with Byrd or his managers and
without any activity in Louisiana. The invitacion to
Louisiana residents to come to New York to make
recordings is far too insubstantial a contact to support
personal jurisdiction with respect to a cause of action for
wrongful possession of master tapes than the residents
later sent to Grossman. Although the suit concerns
15 SongByrd urges that we certify this question to the Louisiana
Supreme Court. See brief for Appellant at 10-14. Since the issue involves
application of federal due process requirements, rather than any dispute
about the meaning of Louisiana law, certification is not warranted.
App. 58
ownership of a chattel (the master tapes) made in
Louisiana by a Louisiana resident, Grossman did not
obtain the capes in Louisiana, or take any action in
Louisiana that caused the tapes to be sent to him.
Although his invitation to Byrd and his managers to come
to New York to make recordings can be viewed as a “but
for” cause of the eventual shipment of the demo tapes to
New York, there was no necessary or even likely
connection between these events, and the connection is
too tenuous to satisfy the “specific jurisdiction”
component of due process analysis. See Metropolitan Life
Insurance Co. v. Robertson-Ceco Corp, 84 F.3d 560, 567-68
(2d Cir. 1996). The “general jurisdiction” component,
which requires continuous and systematic general
business contacts with the forum, see id. at 568, is not
remotely satisfied.
Since personal jurisdiction was lacking in Louisiana,
the transfer was properly ordered.
III. Statute of Limitations
With the Northern District of New York properly
regarded as the forum state after the valid transfer for lack
of personal jurisdiction in Louisiana, there can be no
doubt that New York’s statute of limitations determines
whether SongByrd’s suit, alleging a wrongful conversion
of a chattel in New York, is time-barred, See Levy, 871
F.2d at 10. The parties do noc claim otherwise. Nor do
they dispute that the relevant statute is the three-year
limitations period for conversion and recovery of chattels.
See N.Y. C.P.L.2. § 214 (3) (McKinney 1990). Their
App. 59
dispute concerns the time when SongByrd’s cause of
action accrued. The Estate contends, as the District Court
ruled, that under New York law the limitations period for
conversion begins to run at the time of the conversion.
The District Court found that the conversion occurred
when the Estate licensed the master recordings in 1986,
well beyond the limitations period.
Three decisions bear on the accrual issue. In Sporn v.
MCA_ Records, Inc., 58 N.Y.2d 482, 462 N.Y.S.2d 413
(1983), the New York Court of Appeals considered
whether a cause of action for conversion accrued when the
possessor “first began using plaintiff's property as its
own,” id. at 484, 482 N.Y.S.2d at 414, or whether a new
cause of action accrued each time the defendant used the
property the plaintiff claimed to own. The property was a
master recording. The Court of Appeals ruled that the
plaintiff had only a single cause of action (for conversion)
and that it accrued when the defendant began
“commercially exploring” the property as its own. See id.
at 489, 462 N.Y.S.2d at 416.
In Soloman R. Guggenheim Foundation v. Lubell, 77
N. Y. 2d 311, 567 N.Y.S.2d 623 (N.Y. 1991), the Court of
Appeals considered a replevin claim by a New York City
museum against a good-faith purchaser for return of a
painting that had been stolen from the museum. The
principally disputed issue was whether the plaintiff's,
cause of action did not accrue until the plaintiff made a
demand upon the possessor for return of the painting and
the demand was refused, or whether the plaintiff’s lack of
due diligence in locating the painting resulted in the cause
App. 60
of action accruing at some earlier time. The Court applied
New York’s rule that “a caus» ot action for replevin
against the good-faith purchaser of a stolen chattel accrues
when the true owner makes demand for return of the
chattel and the person in possession of the chattel refused
to return it.” Id. at 317-18, 567 N.Y.S. 2d at 626. Lubell
rejected a requirement that the claimant to ownership
exercise due diligence in locating its chattel, but
acknowledged the New York rule that an owner, “having
discovered the location of its lost property, cannot
unreasonably delay making demand upon the person in
possession of that property.” Id. at 319, 567 N.Y.S. 2d at
627 (citations omitted). Lack of diligence in locating the
property was to be considered only with respect to a
laches defense. See id. at 321, 567 N.Y.S,2d at 628.
In Hoelzer v. City of Stamford, 933 F.2d 1131 (2d Cir.
1991), we considered the City of Stamford’s claim to
recover W.P.A. murals that had once adorned the walls of
the Stamford High School. Claiming ownership, the City
brought a replevin action to recover the murals from
Hoelzer, to whom the General Services Administration
had delivered them in 1971 for storage and restoration.
The City of Stamford was initially unaware of Hoelzer’s
possession of the murals and, even after becoming aware,
did not know that he was claiming ownership until 1986,
within three years of the lawsuit, at which point the City
demanded their return. This Court applied Lubell and
ruled that under New York’s demand-and-refusal rule,
the City’s claim was timely. See id, at 1137. Although
Lubell had involved a stolen chattel in possession of a
App. 61
good-faith purchaser, Hoelzer applied the Lubell demand-
and-refusal rule to artwork that was not stolen and chat
was in possession of a custodian. Since New York used
the demand-and refusal rule to delay the accrual of the
claim of the true owner even against a good-taith
purchaser, Hoelzer understandably applied the rule to
protect the true owner against a mere bailee who had not,
prior to demand and refusal, acted to assert ownership.
Sporn bars SongByrd’s claim. Like the possessor in
that case, the Estate began using the master tapes as its
own when it licensed portions of them to Rounder in
1986:,. See Jaywyn Video Productions, Ltd. v. Servicing
All Media, Inc., 179 A.D.2d 397, 577 N.Y.S. 2d 847 (1s
Dep’t 1992) (licensing of films by library holding them
constituted conversion). The conversion alleged by
SongByrd occurred no later than that date.!* The demand-
and-refusal rule, which functioned to delay accrual of the
claim in Lubell and Hoelzer for the benefit of the true
owner, normally provides some benefit to the good-faith
possessor by precipitating its awareness that continued
possession will be regarded as wrongful by the true
owner. See Ashton Hawkins et_al., A Tale of Two
Innocents: Creating an Equitable Balance Between the
Rights of Former Owners and Good Faith Purchasers of
Stolen Art, 64 Ford. L. Rev. 49, 69-70 (1995). New York
has not required a demand and refusal for the accrual of a
conversion claim against a possessor who openly deals
with the property as its own.
16 Other portions of the master tapes were licensed to Rhinc in 1991.
> App. 62
Even if a demand were required for accrual of
SongByrd’s claim, Lubell instructs that a plaintiff may not
unreasonably delay in making a demand for property
whose location is known. Byrd, either independently or
through his agents, had knowr since the 1970’s that the
master tapes were in Grossman’s possession, and the
unanswered letters to Grossman in 1975 for return of the
master tapes probably sufficed to alert him to Grossman’s
disregard of his ownership claim, thereby rendering any
demand thereafter unreasonably delayed. In any event,
_his successors’ delay in not making a demand in 1987,
when of the master tapes became well known in the
Bearsville’s licensing music world as a result of the
Grammy Award for Byrd’s recordings, was clearly
unreasonable.
Where required, the demand-and-refusal rule
“change[s] the character” of a good-faith possession
before an action for conversion or recovery of a chattel can
be maintained.’” See Goodwin v. Wertheimer, 99 N.Y. 149,
152 (1885) (cited with approval in Lubell, 77 N.Y. 2d at
318, 567 N.Y.S. 2d at 626). As in Sporn, however, no
demand-and-refusal was needed here since the
“character” of Bearsville’s possession had changed by its
actions in treating the master tapes as its own.
17 SongByrd insists that it is not alleging “conversion,” only a
bailment of indefinate duration,” Brief for Appellant at 25-26, which must
now be ended. Put whether or not it uses the label “conversion,” its
complaint alleges facts that demonstrate that Bearsville used the tapes as
its own, therey converting them (even on the assumption that SongByrd’s
ownership interest continued up to the point of the conversion).
App. 63
Conclusion
Because the Appellant’s claim is time-barred, the
order ot the District Court is affirmed.
App. 64
Appendix E
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SONGBYRD, INC. CIVIL ACTION
VERSUS NO. 95-3706
BEARSVILLE SECTION T
RECORDS, INC
Judge G. Thomas Porteous Presiding
Courtroom Deputy: Richard Windhorst
Court Reporter: Vic Digiorgio
April 30, 1997 10:00
Appearances: Justin Zitler
For Plaintiff
Christina Belew
For Albert Grossman
ORDERED: REMANDED TO NEW YORK
S/ Judge G. Thomas Porteous
Date of Entry May 09 1997
App. 65
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SONGBYRD, INC. CIVIL ACTION
VERSUS NO. 95-3706
BEARSVILLE SECTION T
RECORDS, INC MAG. 1
ORDER
The Court, having found that it lacks personal
jurisdiction over defendant, The Estate of Albert
Grossman d/b/a Bearsville Records (incorrectly referred
to in the petition as Bearsville Records, Inc.);
IT IS ORDERED, ADJUDGED AND DECREED that
the captioned matter be transferred from the United States
District Court for the Eastern District of Louisiana to the
United States District Court for the Northern District of
New York.
New Orleans, Louisiana, this 8 day of May 1997.
S/ G.Thomas Porteous, Ir.
G. THOMAS PORTEOUS JR.
UNITED STATES DISTRICT JUDGE
DATE OF ENTRY MAY 09 1997
App. 66
Appendix F
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA
No. 95-1205 DIVISION D —
SONGBYRD, INC.
VERSUS
BEARSVILLE RECORDS, INC.
PETITION IN REVINDICATION TO RECOGNIZE RIGHT
OF OWNERSHIP OF MASTER RECORDINGS, FOR
RETURN THEREOF, AND DAMAGES
NOW INTO COURT, through undersigned counsel,
comes SongByrd, Inc. a corporation licensed to do and
doing business in the State of Louisiana, organized under
the laws of the State of Louisiana, herein represented by
its duly authorized President, Reverend Alexander Byrd,
who respectfully avers as follows:
I.
Plaintiff family corporation SongByrd, Inc. is the
successor in-interest to all rights and causes of action of
Henry Roeland Byrd, p/k/a Professor Longhair, and his
deceased widow, Alice Leona Walton Byrd, both of whom
were domiciliaries of Orleans Parish at the time of their
demise.
II.
App. 67
Made defendant herein is Bearsville Records, Inc.
(hereinafter “Bearsville”) a New York corporation doing,
and having done business, including business with
Professor Longhair, in the State of Louisiana.
Il.
Defendants Bearsville Records, Inc. has detained
certain master recordings of musical performances by the
late Henry Roeland Byrd, p/k/a Professor Longhair, in a
clandestine and equivocal manner, and consequently is
merely a precarious possessor of said master recordings.
IV.
The master recordings referred to in paragraph Ill
were produced by the personal managers of Professor
Longhair, Quint Davis and parker Dinkins, at Deep South
Recording Studios in Baton Rouge, Louisiana, in the year
1971.
V.
The master tapes referred to in paragraph III were
produced by Quint Davis and Parker Dinkins, while
acting within the course and scope of their management of
Professor Longhair, or alternatively, as co-venturers with
Professor Longhair.
VI.
In 1972, Quint Davis and Parker Dinkins entered into
an agreement with Albert Grossman, then President and
founder of defendant Bearsville Records, Inc. to record
Professor Longhair in the Bearsville recording studio in
Woodstock, New York.
App. 68
VI.
Shortly thereafter, Bearsville brought Professor
Longhair and guitarist “Snooks” Eaglin to Woodstock,
New York for a recording session pursuant to the
agreement with Quint Davis and Parker Dinkins.
VII.
Bearsville breached the agreement by failing to
provide additional musicians in an adequate, good and
workmanlike manner. Instead of producing a rhythm
section capable of handling the rhythms of the New
Orleans sound, Bearsville simply provided a bass guitarist
and drummer unsuitable to lay down the bottom for
Professor Longhair and Snooks Eaglin.
IX.
As a consequence of the inappropriate sidemen
brought to the Bearsville recording session in 1972 by
Bearsville, the tapes produced at the Bearsville recording
session were not of sufficient quality for release.
X.
Two other recording sessions subsequent to the
Bearsville session were paid for by Bearsville, one in New
York and one in Memphis, Tennessee, neither of which is
at issue here.
XI.
After the failed Bearsville recording session, Albert
Grossman to hear other master recordings of Professor
Longhair if such were available.
App. 69
XII.
Pursuant to Grossman’s request to hear other
Professor Longhair recordings, Quint Davis and Parker
Dinkins caused the master recordings complained of
herein, to be hand delivered to Bearsville, in 1972.
XII.
Despite repeated requests over the ensuing 15 years
for the return of the said demonstration tapes, Bearsville
failed to return the demo tapes.
XV.
The master recordings at issue here contain, but are
not limited to the following compositions:
“Title” “Release”
No Buts and No Maybes Rounder Records #2057,
Gone So Long Copyright 1987
She Walk Right In - “House Party New Orleans
Thank you Pretty Baby Style” The Lost Sessions
501 Boogie y
Gonna Leave this Town 1eA-1972
Cabbagehead
Hey Little Girl
Big Chief
Everyday I have the Blues
“G” Jam
Mardi Gras in New Orleans _Rhino/Bearsville n#r2 70736
Jambalaya (On the Bayou) Copyright 1991
Tipitina — “Mardi Gras in Baton Rouge”
Fats Domino Medley...
Whole Lot of Loving
Gone So Long
App. 70
How Long Has That Train
Been Gone
XVI.
Bearsville then breached its duty to act as fiduciary
and/or negotiorum gestor in regard to those tapes by
carrying them to the International Music Conference,
MIDEM, in Cannes, France, in the year 1985, presumably
for licensing purposes.
XVII.
Upon information and belief, tragically dying en
route, Albert Grossman lay in state at Heathrow in
London. Upon claiming the corpse, Sally Grossman,
discovered the Baton Rouge recording session tapes
clutched to the deceased body.
XVIII.
A year later, in 1986, Rounder Records of Cambridge,
Massachusetts, obtained a quitclaim license for use of
these tapes from Bearsville Records, and released eleven
of the master recordings (together with certain other
Professor Longhair material not at issue here) on the
Grammy Award-Winning Album, “House Party New
Orleans Style” “The Lost Sessions 1971-72” (Copyright
1987 Rounder). Rounder paid Bearsville the sum of
$25,000.00 in consideration for the license.
XIX.
Bearsville then licensed the same master recordings to
Rhino Records, which company released 7 other
compositions on 1991 release # R2 70736 “Mardi Gras in
App. 71
Baton Rouge” (Copyright 1991 Bearsville Records, Inc.).
Upon information and belief, Rhino also paid Bearsville
$25,000.00.
XX.
At no time has Bearsville made any overt or
unambiguous act sufficient to put plaintiff on notice of its
intent to possess the recordings at issue with anything
other that the permission of or on behalf of the plaintiff.
XXI.
At no time did Bearsville have semblance of title to
the master recordings at issue here.
XXII.
SongByrd, Inc., as the successor-in-interest to
professor Longhair, has made amicable demand for return
of the master recordings, or in the alternative, right to
ownership thereof, to no avail.
WHEREFORE plaintiff SongByrd, Inc. prays that
service and citation issue upon defendant and that after
all legal proceedings be had there be judgment in its favor
and against Bearsville Records Inc. awarding SongByrd,
Inc.:
1) Fifty Thousand Dollars ($50,000.00) in
damages;
2) Declaring SongByrd, Inc. owner of the
master recordings from the Deep South recording
Studios in 1971 including but not limited to the
following compositions:
App. 72
“Title” “Release”
No Buts and No Maybes Rounder Records #2057,
Gone So Long Copyright 1987
Thank you Pretty Baby Style” The Lost Sessions
a 1971-1972
Gonna Leave this Town
Cabbagehead
Hey Little Girl
Big Chief
Everyday I have the Blues
“G ” Jam
Mardi Gras in New Orleans _Rhino/Bearsville n#r2 70736
Jambalaya (On the Bayou) Copyright 1991
Tipitina — “Mardi Gras in Baton Rouge’
Fats Domino Medley...
Whole Lot of Loving -
Gone So Long
How Long Has That Train
Been Gone
7
3) Substituting SongByrd, Inc., in the place and
stead of Bearsville Records, Inc. in any existing
contracts, licenses, or agreements regarding the
above named compositions;
4) Return of the master recordings embodying
the above named compositions;
5) Judicial interest, reasonable attorney’s fees,
costs of all court and all other equitable relief in
the premises.
App. 73
Respectfully submitted,
S/ Justin Asher Zitler
JUSTIN ASHER ZITLER
Attorney for SongByrd, Inc.
2833 Napoleon Avenue
New Orleans, LA 70115
Bar No. 18517
PLEASE SERVE:
Bearsville Records, Inc. (long-arm statute)
through their agent for service
of process
Corporation Trust Company
227 Park Avenue
New York, NY 10017
App. 74
Appendix G
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SONGBYRD, INC. Plaintiff : VERIFIED
- against - : ANSWER
ALBERT B. GROSSMAN,
Estate of d/b/a : Index No.:
BEARSVILLE RECORDS, Defendant : 97-CV-698
FILED:
Sept. 26, 1997
The defendant, Albert B. Grossman, Estate of d/b/a
Bearsville Records, by his attorneys, Ryan, Orlando &
Smallacombe, LLP, as and for a verified answer to the
complaint herein, alleges as follows:
1. Lacks knowledge or information sufficient to form
a belief as to the truth of the allegations and/or statements
contained in paragraphs numbered “1”, “4”, “5”, “6”, “7”,
"12", “i2", “i, “Ws er oo oe “oe, Oe
complaint, and refers all questions of law to the Court.
2. Denies each and every allegation and/or statement ~
contained in paragraphs numbered “2”, “3”, “8”, “9”,
“16”, “20” and “21” of the complaint, and refers all
questions of law to the Court.
App. 75
3. Admits so much of the allegations contained in
paragraph numbered “10” of the complaint as alleges that
there were recording sessions in Bearsville, paid for by
Bearsville Records, Inc., both in New York and Tennessee,
the number of which defendant lacks knowledge of, and
further alleges that defendant lacks knowledge or
information sufficient to form a belief as to the truth of the
remaining allegations contained in paragraph “10” of the
complaint.
4. Admits so much of the allegations contained in
paragraph numbered “13” of the complaint as alleges that
Bearsville Records, Inc. failed to return the demo
tapes/ master recordings, denies that defendant ever had a
duty or intention to return those tapes, and lacks
knowledge or information sufficient to form a belief as to
the truth of the remaining allegations contained in
paragraph “13” of the complaint.
5. Notes, for the record, that there is no allegation
numbered “14” of the complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
DEFENDANT, ALBERT B. GROSSMAN, ESTATE
OF D/B/A/ BEARSVILLE RECORDS, ALLEGES AS
FOLLOWS:
6. The complaint fails to state a cause of action for
which relief can be granted
AS AND FOR A SECOND AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
App. 76
7. The Court lacks personal jurisdiction of this
answering defendant.
AS AND FOR A_ THIRD AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
8. The Court does not have jurisdiction over the
subject matter of the plaintiff’s cause of action.
AS AND FOR A FOURTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
9. That some or all of the plaintiff’s claims or causes of
action are barred by the applicable Statute of Limitations.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE,
DEFENDANT, ALBERT B. GROSSMAN, ESTATE
OF D/B/A/ BEARSVILLE RECORDS, ALLEGES AS
FOLLOWS:
10. That the plaintiff has a full and adequate remedy
at law thereby barring the equitable relief sought.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE,
DEFENDANT, ALBERT B. GROSSMAN, ESTATE
OF D/B/A/ BEARSVILLE RECORDS, ALLEGES AS
FOLLOWS:
11. The defendant has, at all times, held itself out to
the public and the plaintiffs, to be the owner of the subject
recordings.
AS AND FOR A SEVENTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
App. 77
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
12. The plaintiffs are not the real parties in interest
and have no cognizable claim for the relief sought in this
complaint.
AS AND FOR A_ EIGHTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
13. The plaintiff has no standing to bring the equitable
claim made in the subject complaint.
AS AND FOR A NINTH’ AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
14. Assuming, arguendo, that defendant is not the
rightful owner of the subject recordings, than those
recordings were converted by defendants more than
fifteen years ago and any action to recover same is barred
by the applicable statute of limitations.
AS AND FOR A _ TENTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
15. This proceeding is governed by the law of the
State of New York and, upon information and belief, does
not recognize the cause of action alleged in the complaint
as a valid basis for recovery of the relief sought in this
complaint.
App. 78
AS AND FOR A ELEVENTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
16. Assuming, arguendo, that defendant was not, upon
initial receipt of the subject recordings, the rightful owner
of them, than defendant now has title and ownership to
those recordings by virtue of adverse possession.
AS AND FOR A TWELFTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
17. Plaintiff comes into court seeking equitable relief
with “unclean hands” and therefore is not entitled to the
relief sought in the complaint.
AS AND FOR A THIRTEENTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
18. Plaintiff does not have standing to bring the claim
for money damages alleged in the complaint.
AS AND FOR A FOURTEENTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
19. Full payment was made by defendant for the
subject recordings before, or at the time of their initial
transfer into the possession of defendant more than 25
years ago.
App. 79
AS AND FOR A FIFTEENTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
20. Defendant, from the moment the subject
recordings were transferred to its possession, overtly and
unambiguously exercised dominion and control of the
subject recordings, which remained unchallenged by legal
application until some twenty-five years later. As such,
any claim by plaintiff to ownership of the recordings
and/or entitlement to the proceeds of the licensing of
those recordings, is barred by the applicable statute of
limitations.
AS AND FOR A SIXTEENTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
21. Defendant, was, initially, a co-owner of the subject
recordings when possession was first transferred to him
but later, with the passage of time and defendant's
continuing refusal to return the subject recordings,
acquired sole rights to the recordings due to any party in
interest’s failure to pursue any claimed right or
entitlement to same.
AS AND FOR A SEVENTEENTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
22. Defendant owns the subject recordings by virtue
of acquisitive prescription.
App. 80
AS AND FOR A EIGHTEENTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
23. At no time did plaintiff or the real party in interest
ever represent to defendant that it agreed to “lend” the
tapes to defendant from their initial transfer to
defendant’s or, assuming arguendo, that initially the
recordings were received by defendant on “loan”, then
from at least the first time that the return of the tapes was
requested by plaintiff and defendant refused and failed to
do so, plaintiff was on notice of defendant's intention to
own and possess the subject recordings. As such, the
claims made in the complaint are barred by the Statute of
Limitations.
AS AND FOR A NINETEENTH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
24. Defendant was entitled to ownership of the
subject recordings as compensation for his “advances” to
plaintiff's decedent on or before the transfer of those
recordings to defendant’s possession.
AS AND FOR A TWENTIETH AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
25. Defendant was entitled to ownership of the
subject recordings as compensation for his “advance
compensation” made to plaintiff's decedent and/or in
App. 81
compensation for the moneys expended on behalf of the
plaintiff's decedent in and around the year 1972.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE
DEFENSE, DEFENDANT, ALBERT B.
GROSSMAN, ESTATE OF D/B/A/ BEARSVILLE
RECORDS, ALLEGES AS FOLLOWS:
26. The real party in interests transferred ownership
of the subject recordings to defendant as and for good and
valuable consideration.
WHEREFORE, defendant, demands:
1.) Judgment dismissing the complaint; and/or
2.) the costs and disbursements of this action.
DATED: September 23, 1997
RYAN, ORLANDO & SMALLACOMBE, LLP
Attorneys for Defendant, Albert B. Grossman,
Estate of d/b/a Bearsville Records
S/ Melissa J. Smallacombe, Esq.
MELISSA J. SMALLACOMBE, ESQ.
Federal Bar Roll Number: 102623
Albany, New York
ae Ce,
App. 82
Appendix H
THE LOUISIANA CIVIL CODE
Book II- Things and the Different Modifications of
Ownership, Title II- Ownership, Chapter 3, .
Section 4: Protection Of Ownership
Article 526.
Recognition of ownership; recovery of the thing
The owner of a thing is entitled to recover it from
anyone who possesses or detains it without right and to
obtain judgment recognizing his ownership and ordering
delivery of the thing to him.
Article 526.
Revision Comment (b)
In all civil law systems, the owner of a thing may
bring a revendicatory action (action en revendication) for
the recognition of his ownership and for the recovery of
the thing from anyone who possess or detains it without
right. 1 Planiol, Civil Law Treatise, Part 2, Sec. 2445 et
seq.; Yiannopoulos, Civil Law Property Secs. 124, 125 and
126 (1968); See specifically, Greek Civil Code Arts. 1094,
1095 and BGB Secs. 985 and 986.
In Louisiana, the revendicatory action for the
recovery of immovable property is more specifically
designated as a petitory action and is governed by articles
3651-3654 of the Louisiana Code of Civil Procedure. In
addition, the owner of an immovable or of a movable may
bring an action for declaratory judgment for the
9 eee ee
ee Oe
App. 83
recognition of his ownership. See Code of Civil Procedure
Articles 1871-1883. In Louisiana, the revendicatory action
for the recovery of movables in an innominate real action.
For Louisiana jurisprudence and _ doctrine _ see
Yiannopoulos, Civil Law Property Secs. 135 and 145
(1968); Bouchard v. Parker, 32 La.Ann. 535 (1880). The
expressions revendication and action en revendication have
been used in the French text of the Code of Practice of
1825. these expressions have been translated in the
English texts of the two codes as “reclamation” and
“action for the ownership” (or claim for restitution). See
Civil Code Arts. 3453 and 3456 (1870). Cf. Code of Practice
Art. 4 (1870).
Book III- Of the Different Modes of Acquiring the
Ownership of Things, Title XXIII- Occupancy
and Possession Chapter 1, Section 4:
Article 3437.
Precarious possession
The exercise of possession over a thing with the
permission of or on behalf of the owner or possessor is
precarious possession.
Book III- Of the Different Modes of Acquiring
the Ownership of Things, Title XXIV-
Prescription Chapter 3, Section 1:
Article 3477.
Precarious possession; inability to prescribe
App. 84
Acquisitive prescription does not run in favor of a
precarious possessor or his universal possessor.
Article 3478.
Termination of Precarious possession; commencement
of prescription
Reads in pertinent part:
...Any other precarious possessor, or his universal
successor, may commence to prescribe when he gives
actual notice to the person on whose behalf he is
possessing that he intends to possess for himself.
STATE STATUES:
THE LOUISIANA LONG-ARM STATUTE
Louisiana Revised Statutes 13: 3201
A.) A court may exercise persona jurisdiction over a
nonresident, who acts directly or by an agent, as to a
cause of action arising from any one of the following
activities performed by the nonresident:
1.) Transacting any business in this state
2.) Contracting to supply services or things in this
state
3.) Causing injury or damage by an offense or
quasi offense committed through an act or
omission in this state-
4.) Causing injury or damage in this state by an
offense or quasi offense committed through an
act or omission outside of this state if he
regularly does or solicits business, or engages in
a a
Een a
App. 85
any other persistent course of conduct, or
derives revenue from goods used or consumed
or services rendered in this state
5.) Having an interest in, using or possessing a real
right on immovable property in this state
6.) Non-support of a child, parent, or spouse or a
former spouse domiciled in this state to whom
an obligation of support is owed and with
whom the nonresident formerly resided in this
state.
7.) Parentage and support of a child who was
conceived by the nonresident while he resided
in or was in this state.
8.) Manufacturing of a product or component
thereof which caused damage or injury in this
state, if at the time of placing the product in to
the stream of commerce, the manufacturer could
have foreseen, realized, expected or anticipated
that the product may eventually be found in this
state by reason of its nature and the
manufacturer’s marketing practices.
B.) In addition to the provisions of Subsection A, a
court of this state may exercise personal jurisdiction over
a nonresident on any basis consistent with the constitution
of this state and of the constitution of the United States.
PROVISIONS OF THE
UNITED STATES CONSTITUTION
U.S. Const. Art. III, § 2, cl. 1
Reads in pertinent part:
App. 86
The judicial Power shall extend to all Cases in Law
and Equity, -- between Citizens of different States.
U.S. Const. Amend. V
Reads in pertinent part:
[No person shall] ...be deprived of life, liberty or
property, without due process of law. . .
U.S. Const. Amend. XIV, § 1
Reads in pertinent part:
. nor shall any State deprive any person of life,
liberty, or property, without due process of law. . .
FEDERAL STATUTES
28 U.S.C. §1254
Reads in pertinent part:
Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods: (1) By writ of
certiorari granted upon the petition of any party to any
civil or criminal case, before or after rendition of judgment
or decree;
28 U.S.C. §1292(b)
When a district judge, in making in a civil action an
order not otherwise appealable under this section, shall be
of the opinion that such order involves a controlling
question of law as to which there is a substantial ground
for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in
a
App. 87
such order. The Court of Appeals may thereupon, in its
discretion, permit an appeal to be taken from such order,
if application is made to it within ten days after the entry
of the order: Provided, however, That application for an
appeal hereunder shall not stay proceedings in the district
court unless the district judge or the Court of Appeals or a
judge thereof shall so order.
28 U.S.C. §1332(a)(1)
The district courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds
the sum or value of $75,000, ($50,000 at time of case),
exclusive of interest and costs and is between - (1) citizens
of different states.
28 U.S.C. §132(c)
For the purposes of this section and section 1441 of
this title, a corporation shall be deemed a citizen of any
State by which it has been incorporated and of the state
where it has its principal place of business: provided
further, That in any direct action against the insurer of a
policy or contract of liability insurance, whether
incorporated or unincorporated, to which action the
insured is not joined as the party-defendant, such insurer
shall be deemed a citizen of the State of which the insured
is a citizen, as well as of any state by which the insured is
a citizen as well as of any State by which the insurer has
been incorporated and of the State where it has its
principal place of business.
App. 88
28 U.S.C. §1391(a)
A civil action wherein jurisdiction is founded only on
diversity of citizenship may, except as otherwise provided
by law, be brought only in the judicial district where all
plaintiffs or all defendants reside, or in which the claim
arose.
28 U.S.C. §1404(a)
For the convenience of parties or witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have
been brought.
28 U.S.C. §1406(a)
The district court of a district in which is filed a case
laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been
brought.
28 U.S.C. §1441(a)
Except as otherwise expressly provided by Act of
Congress, any civilian action brought in a State court of
which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.