Opinion
21-CV-3314 (PAE) (JW)
10-23-2023
BERNARD T. ANDERSON BEY, Plaintiff, v. ROC NATION, LLC, SHAWN C. CARTER, and LIVE NATION ENTERTAINMENT, INC., Defendants.
REPORT & RECOMMENDATION
JENNIFER E. WILLIS UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE:
BACKGROUND
Bernard T. Anderson Bey (“Bey”), proceeding pro se, commenced this action alleging the defendants “have deliberately suppressed Team Zenith Platinum Status Inc brand and that of their affiliated artist from generation of substantial revenue through interstate commerce and touring by suppression of revenue generation, in cryptocurrency investments, banking, deleting the securement of master recording copyrights as well as deterring the securement of individual income of C.E.O. Bernard T, Anderson Bey such as tax refunds and stimuli payments, etc.” Dkt. No. 17.
On April 22, 2022, this Court issued a Report and Recommendation as to Defendant Live Nation's Motion to Dismiss, recommending that the District Court grant the Motion as Plaintiff's “amended complaint is devoid of any allegations of wrongful conduct by LNE in violation of antitrust laws.” See Dkt. 50 at 8 (“Bey failed to allege sufficient factual content required to state monopolization and conspiracy claims, including: (i) the relevant market within which LNE operates; (ii) LNE's possession of power in the relevant market; (iii) LNE's willful acquisition or maintenance of that power; (iv) any unlawful conduct by LNE; (v) an agreement to engage in anticompetitive conduct; (vi) overt acts in furtherance of the conspiracy; and (vii) specific intent to monopolize.”).
On July 8, 2022, this Court issued a Report and Recommendation as to Defendants Roc Nation and Carter's Motion to Dismiss, also recommending that the Court grant the Motion with prejudice. See Dkt. 94 at 7, 11 (“Bey also fails to adequately allege a claim for conspiracy to monopolize because he does not allege the required elements of such a claim - a concerted action, overt acts in furtherance of a conspiracy, and specific intent to monopolize. Bey simply states there was a conspiracy.”).
On May 1, 2023, Judge Engelmayer adopted both Reports in their entirety. Dkt. No. 109.
On May 28, 2023, and on July 25, 2023, Mr. Bey filed a Motion to Set Aside Findings of Fact under Rule 52(b), a Motion for a New Trial under 59(e), a Notice of Order to Show Cause seeking Preliminary Injunctive Relief, and Sanctions under Rule 11(b). See Dkt. Nos. 110, 115, 119. The Plaintiff also filed various letters and exhibits on the docket. See generally Dkt. Nos. 127-131.
On August 17, 2023, Judge Engelmayer referred the Motions to this Court for a Report and Recommendation. Dkt. No. 126.
LEGAL STANDARD
District courts “have broad discretion in determining whether to grant a motion for reconsideration.” Open Soc'y Just. Initiative v. Cent. Intel. Agency, No. 19 CIV. 1329 (PAE), 2021 WL 4150522, at *4 (S.D.N.Y. Sept. 13, 2021) citing Baker v. Dorfman, 239 F.3d 415, 427 (2d Cir. 2000). A motion to reconsider “is not a motion in which a movant may reargue those issues already considered when a party does not like the way the original motion was resolved.” Evolution Fast Food Gen. P'ship v. HVFG, LLC, No. 15 Civ. 6624 (DAB), 2018 WL 1779377, at *2 (S.D.N.Y. Mar. 28, 2018). “The major grounds for justifying reconsideration are ‘an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'” Open Soc'y Just. Initiative v. Cent. Intel. Agency, No. 19 CIV. 1329 (PAE), 2021 WL 4150522, at *4 (S.D.N.Y. Sept. 13, 2021) citing In re Pishevar, No. 19 Misc. 503 (JGK) (SDA), 2020 WL 1862586, at *2 (S.D.N.Y. Apr. 14, 2020); Terra Sec. ASA Konkursbo v. Citigroup, Inc., 820 F.Supp.2d 558, 560 (S.D.N.Y. 2011).
Under Rule 52(b), a court “may amend its findings-or make additional findings-and may amend the judgment accordingly.” See Fed.R.Civ.P. 52(b). “A party moving pursuant to Rule 52(b) may seek to correct ‘manifest errors of law or fact ... or in some limited situations, to present newly discovered evidence.'” Gonzalez v. United States, No. 17-CV-3645 (GBD), 2021 WL 1606182, at *1-2 (S.D.N.Y. Mar. 1, 2021), affd, 80 F.4th 183 (2d Cir. 2023) citing United States v. Carson, 52 F.3d 1173 (2d Cir. 1995). Parties, however, are not permitted to “relitigate old issues, to advance new theories, or to secure a rehearing on the merits.” Id.
Under Rule 59(e), “district courts may alter or amend judgment to correct a clear error of law or prevent manifest injustice.” Id. citing Pillar Dynasty LLC v. New York & Co., Inc., 933 F.3d 202, 216 (2d Cir. 2019). Courts have held that a “judgment in a civil case does not constitute ‘manifest injustice' where the movant's arguments for relief ‘were available to the party below and the party proffer[ed] no reason for his failure to raise the arguments.” See Gonzalez, supra, citing Corsair Special Situations Fund, L.P. v. Nat'l Res., 595 Fed.Appx. 40, 44 (2d Cir. 2014).
Though “Rule 52(b) and 59(e) are accordingly governed by similar and similarly demanding standards,” each has a distinct application. See generally Red Hook Container Terminal LLC v. S. Pac. Shipping Co., No. 15-CV-01483 (AJN), 2019 WL 4509025, at *2 (S.D.N.Y. Sept. 19, 2019). “Rule 52(b) provides a means to dispute underlying facts that resulted in faulty factual findings or conclusions of law based on those facts. Rule 59(e) provides for a broad request for reconsideration of the judgment itself.” See Gonzalez, supra, citing Panton v. United States, No. 98-CV-1881 (LAP), 2010 WL 5422293, at *2 (S.D.N.Y. Dec. 23, 2010). “Where a [party] fails to dispute facts in the record, a motion under 52(b) is inappropriate.” Id.
Under these rules, the movant must show that the Court overlooked “controlling decisions or factual matters” that had been previously put before it. Great Am. Ins. Co. of New York v. USF Holland, Inc., No. 11-CV-6879 (KBF) 2013 WL 1832185, at *1 (S.D.N.Y. May 1, 2013). “Such motions must be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court.” Range Road Music, Inc. v. Music Sales Corp., 90 F.Supp.2d 390, 391-92 (S.D.N.Y.2000)(Sprizzo, DJ.).
On the proposed injunction, the “four most important factors in evaluating a request for an injunction are: (1) the significance of the threat of irreparable harm to plaintiff if the injunction is not granted; (2) the state of the balance between this harm and the injury that granting the injunction would inflict on defendant; (3) the probability that plaintiff will succeed on the merits; and(4) the public interest.” See 11A Fed. Prac. & Proc. Civ. § 2948 (3d ed.), Grounds for Granting or Denying a Preliminary Injunction; Goldstein v. Hochul, No. 22-CV-8300 (VSB), 2023 WL 4236164 (S.D.N.Y. June 28, 2023) citing Oneida Nation of New York v. Cuomo, 645 F.3d 154, 164 (2d Cir. 2011). A preliminary injunction is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” See Sussman v. Crawford, 488 F.3d 136 (2d Cir. 2007)(emphasis added).
On sanctions, under Federal Rule of Civil Procedure 11(c), a court may impose appropriate sanctions on “any attorney, law firm, or party that violate[s]” Rule 11(b). See Fed.R.Civ.P. 11(c). Rule 11(b) requires an attorney to certify that, “(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonable based on belief or a lack of information. See Fed.R.Civ.P. 11(b).
Rule 11(c)(2) sets forth the procedure to be followed where sanctions are pursued. It creates a “safe harbor which gives the offending attorney a chance to modify or withdraw the challenged submission so as to avoid sanctions.” Black v. Ganieva, No. 21-CV-8824 (PAE), 2022 WL 2354916, at *10 (S.D.N.Y. June 30, 2022) citing In re Pennie & Edmonds LLP, 323 F.3d 86, 89-90 (2d Cir, 2003). A motion for sanctions is initially to be served only on the offending attorney, and not filed with the Court. Id. The actual motion for sanctions is to be filed only if, 21 days after such service, the challenged submission has not been “withdrawn or appropriately corrected.” See Fed.R.Civ.P. 11(c)(2). Sanctions may not be awarded under Rule 11(c)(2) where proper notice and opportunity to withdraw or correct the filing were not provided to the party to be sanctioned. See Black, supra, citing Lawrence v. Richman Grp. of CT LLC, 620 F.3d 153, 158 (2d Cir. 2010).
DISCUSSION
The previous Report recommended granting the Motions to Dismiss because the Plaintiff did not sufficiently allege, “(i) the relevant market (ii) possession of power in the relevant market; (iii) willful acquisition or maintenance of that power; (iv) any unlawful conduct; (v) an agreement to engage in anticompetitive conduct; (vi) overt acts in furtherance of the conspiracy; and (vii) specific intent to monopolize.” See Dkt. 50. Plaintiff's Amended Complaint also failed to allege a “claim for conspiracy to monopolize because he [did] not allege the required elements of such a claim - a concerted action, overt acts in furtherance of a conspiracy, and specific intent to monopolize.” See Dkt. 94 at 7, 11.
Plaintiff's new papers identify no “change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Open Soc'y Just. Initiative, supra at 4. Specifically, Plaintiff presents no new evidence or change in controlling law on the alleged relevant market, alleged market power, concerted action, or specific intent to monopolize, the grounds this Court articulated for the original Reports recommending dismissal.
In effect, Plaintiff puts forward a “collection of arguments all of which they have either already presented or have had an ample opportunity to present to this court. This attempt to take a second bite at the apple is beyond the scope of Rules 52(b) and 59(e).” Sims v. Mme. Paulette Dry Cleaners, No. 82-CV-5438 (MEL), 1986 WL 12511, at *1 (S.D.N.Y. Oct. 31, 1986).
Plaintiff “essentially seeks a re-do.” Pac. Indem. Co. v. Kiton Corp., No. 21-CV-4391 (LJL), 2022 WL 4237092, at *3 (S.D.N.Y. Sept. 14, 2022).
Thus, Plaintiff has not met the “narrowly construed” grounds for reconsideration under either Rule 52(b) or Rule 59(e). See Range Road Music, Inc. v. Music Sales Corp., 90 F.Supp.2d 390, 391-92 (S.D.N.Y.2000)(Sprizzo, DJ.).
Because the Plaintiff has not identified any new evidence or change in the law that would warrant reconsideration under Rule 52(b) or 59(e), the Plaintiff has similarly not shown that there is a “probability that [he] will succeed on the merits.” See Goldstein v. Hochul, No. 22-CV-8300 (VSB), 2023 WL 4236164 (S.D.N.Y. June 28, 2023) citing Oneida Nation of New York v. Cuomo, 645 F.3d 154, 164 (2d Cir. 2011). Thus, Plaintiff has not carried the requisite burden of persuasion, “by a clear showing,” and therefore no injunction is warranted. See Sussman v. Crawford, 488 F.3d 136 (2d Cir. 2007)(emphasis added).
On sanctions, Plaintiff has not met the requirements of Rule 11. Sanctions “may not be awarded under Rule 11(c)(2) where proper notice and opportunity to withdraw or correct the filing were not provided to the party to be sanctioned.” See Black, supra, citing Lawrence v. Richman Grp. of CT LLC, 620 F.3d 153, 158 (2d Cir. 2010). The Plaintiff never sent the Defendants the required Rule 11 notice. Moreover, Defendants' Opposition to the Motion for Reconsideration cannot amount to sanctionable conduct, since the Court agrees with the Defendants that the Motion for Reconsideration should be denied.
Finally, the Court has received numerous filings from the Plaintiff. Many of these filings fail to comply with the Court's Individual Practice Rules requiring that leave be sought prior to filing a Motion. See Individual Practice Rule II.A.
Defendant requests that a filing restriction be imposed on the Plaintiff that would require him to seek leave from the Court prior to filing any new actions or new motions. In Komatsu, the Court imposed a requirement that prior to any new filing, “the Plaintiff must: a) Submit a one-page motion titled “Motion for Leave to File” that explains why he should be permitted to file the letter or motion; and b) Include a one-page statement, made under penalty of perjury, stating that the purpose of his submission is not frivolous or in bad faith, or for any improper purpose, such as to harass or cause unnecessary delay, and that the filing complies with this Court's orders, the Federal Rules of Civil Procedure, and this Court's Local Rules.” See Komatsu v. City of New York, No. 20-CV-7502 (ER), 2020 WL 7251384 (S.D.N.Y. Nov. 17, 2020).
Because so many of Plaintiff's filings have either been frivolous or failed to follow the proper procedures, the Court finds that a similar restriction is warranted here. As a court “may not impose a filing injunction on a litigant...without providing the litigant with notice and an opportunity to be heard,” the Plaintiff has until November 15th to file a letter explaining why the Court should not impose a filing restriction in this case. See Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998).
If Plaintiff's response to the Order to Show Cause is insufficient or if no objection is filed, then Plaintiff shall be prohibited from future filings unless he:
a) Submits a one-page motion titled “Motion for Leave to File” that explains why he should be permitted to file the letter or motion; and
b) Includes a one-page statement, made under penalty of perjury, stating that the purpose of his submission is not frivolous or in bad faith, or for any improper purpose, such as to harass or cause unnecessary delay, and that the filing complieswith this Court's orders, the Federal Rules of Civil Procedure, and this Court's Local Rules.
Any filings that do not comply with such a procedure will be stricken from the docket.
RECOMMENDATION
For the foregoing reasons, I recommend that Plaintiff's Motion for Reconsideration under Rules 52(b) and 59(e), Motion for Sanctions, and Motion for an Injunction be DENIED. Defendants' request for a filing injunction is GRANTED.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court. Any requests for an extension of time for filing objections must be directed to Judge Engelmayer. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
The Clerk of Court is respectfully requested to mail a copy of this Report and Recommendation to the Plaintiff and to close Dkt. Nos. 110 and 119.