Levine v. Elliot Landy & Landyvision, Inc.

860 F. Supp. 2d 184, 2012 WL 1765887
CourtDistrict Court, N.D. New York
DecidedMay 18, 2012
DocketNo. 1:11-CV-1038
StatusPublished
Cited by4 cases

This text of 860 F. Supp. 2d 184 (Levine v. Elliot Landy & Landyvision, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Levine v. Elliot Landy & Landyvision, Inc., 860 F. Supp. 2d 184, 2012 WL 1765887 (N.D.N.Y. 2012).

Opinion

MEMORANDUM — DECISION and ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

Elliot Landy (“Landy”) and his company, Landyvision, Inc. (“Landyvision”) (collectively “defendants” or “counter-claimants”) assert seven counterclaims against Barry Z. Levine (“plaintiff’ or “Levine”), Linanne G. Sackett (“Saekett”), and The Brunswick Institute LLC (“Brunswick”) (collectively “counter-defendants”). Currently pending is counter-defendants’ motion to dismiss certain counterclaims pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule-”).

[187]*187II. PROCEDURAL HISTORY

Plaintiffs complaint asserts twenty-one causes of action against defendants, including copyright infringement, unjust enrichment, conversion, unfair competition, and that an accounting is due. Defendants moved to dismiss certain claims pursuant to Rule 12(b)(6). Plaintiff opposed and defendants replied. A Memorandum-Decision and Order was issued on December 30, 2011, granting in part and denying in part defendants’ motion to - dismiss. See Levine v. Landy, 832 F.Supp.2d 176 (N.D.N.Y.2011) (Hurd, J.). The Memorandum-Decision .and Order directed defendants to answer the following remaining claims: Counts 1-17, Copyright Infringement; Count 18, Unjust Enrichment with respect to Group B photographs;1 Count 19, Conversion; Count 20, Lanham Act; and Count 21, Accounting with respect to Group B photographs.

Defendants answered the complaint and asserted seven counterclaims against plaintiff Levine, Sackett (Levine’s wife), and Brunswick, an educational organization of which Sackett is the owner and president. The answer contained the following counterclaims: Count I, Copyright Infringement (against Levine, Sackett, and Brunswick); Count II, Contributory Copyright Infringement (against Levine, Sackett, and Brunswick); Count III, Declaratory Judgment (against Levine); Count TV, Tortious Interference with Business Relationships (against Levine and Sackett); Count V, Tortious Interference with Contract (against Levine and Sackett); Count VI, Fraudulent Inducement (against Levine and Sackett); and Count VII, Relief Under the All Writs Act (against Levine).

Although Landy and Landyvision styled their claims against Sackett and Brunswick as “third-party claims,” and refer to the two as “third-party defendants,” it should be noted that this is not a case of true third-party practice. Federal Rule of Civil Procedure 14 governs third-party practice. Rule 14(a) dictates when a defending party, such as Landy and Landyvision, may bring in a third party. That rule provides in part: “A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.” Fed.R.Civ.P. 14(a)(1). That is not the case here. Defendants Landy and Landyvision did not bring in Sackett and Brunswick because Sackett and Brunswick are, or may be, liable to them for all or part of the claims asserted against them by Levine. Thus, third-party practice is not appropriate here and Sackett and Brunswick are not “third-party defendants.”

Instead, the assertion of claims against Sackett and Brunswick are most appropriately covered by Rule 13, entitled Counterclaim and Crossclaim. Rule 13 governs the filing of permissive and compulsory counterclaims and further provides for the joinder of additional parties needed to fully adjudicate a counterclaim against a plaintiff, subject to the provisions of Rules 19 and 20. Fed.R:Civ.P. 13(h). Rule 13(h) was redrafted in 1966, to “mak[e] it clear that if a counterclaim or crossclaim has [188]*188been properly asserted, then any person whose joinder in the original action would have been possible under Rule 20, which deals with permissive joinder, may be added as a party to the counterclaim or cross-claim.” 6 Charles Alan Wright et al., Federal Practice and Procedure § 1434 (3d ed.2012). Courts typically construe Rule 13(h) liberally “in an effort to avoid multiplicity of litigation, minimize the circuity of actions, and foster judicial economy.” Id. As Landy and Landyvision properly assert counterclaims against Levine, the propriety of adding Sackett and Brunswick as parties must be examined unders Rule 20.

Rule 20, entitled Permissive Joinder of Parties, dictates when persons may join or be joined as parties. Rule 20(a) states:

Persons ... may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the -alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.

Fed.R,Civ.P. 20(a). The first prong of that test is met here because counter-claimants allege counter-defendants jointly engaged in copyright infringement and that counter-claimants suffered damages for which counter-defendants are jointly and severally liable. Counter-claimants’ right to relief arises out of the same series of transactions involving the allegedly fraudulent registration of copyrighted works; the unauthorized copying, sale, and/or distribution of those works; and Levine and Sackett’s tortious acts with respect to Landy’s business. The second prong requiring that a question of law or fact common to all defendants will arise in the action is also met here. The validity of the copyright registrations filed by both Levine and Landy will be determined as will the true authorship of the photographs at issue. Accordingly, the requirements for permissive joinder under Rule 20 are met, and Sackett and Brunswick may properly be. joined alongside Levine as counter-defendants.2

Counter-defendants Levine, Sackett, and Brunswick jointly moved to dismiss all counterclaims except Count III, pursuant to Rule 12(b)(6) for failure to state a claim. Counter-claimants opposed and counter-defendants replied. Oral argument was heard in Utica, New York on May 15, 2012. Decision was reserved.

III. BACKGROUND

The following facts, taken from the answer and counterclaims, are assumed true for purposes of the motion to dismiss. This' case arises from a dispute between two photographers who both attended the Woodstock Music Festival in August 1969 and captured original photographic images of performers and festival scenes. Levine had a camera at Woodstock by chance while working with a sound crew oh a Woodstock documentary, while Landy was one of two official photographers at the festival.

The two became and remained friends for several decades, during which time Landy acted as an agent for the licensing of Levine’s Woodstock photographs. Levine gave Landy blanket permission to license Levine’s photographs to buyers who contacted Landy for his own photographs of Woodstock, and Landy orally agreed to offer some of Levine’s photo[189]*189graphs to some of Landy’s clients.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
860 F. Supp. 2d 184, 2012 WL 1765887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levine-v-elliot-landy-landyvision-inc-nynd-2012.