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Case 1:02-cv-01963-BSJ Document 93 Filed 02/11/11 Page 1 of 19 fi-'-:· ..===' !1uS'rj("~- " UNITED STATES DISTRICT COURT ; ~ Il,; :.; , . SOUTHERN DISTRICT OF NEW YORK --x CONNIE FRANCONERO personally known as CONNIE FRANCIS, --. Plaintiff, 02 Civ. 1963(BSJ) v. Memorandum and Order UNIVERSAL MUSIC CORP., Defendant. -----------------x BARBARA S. JONES UNITED STATES DISTRICT JUDGE De UMG Recordings, Inc. 1 moves summary judgment on Plaintiff Connie Francis' claims for breach of contract and underpayment of royalt 2 For the reasons low, Defendant's mot is GRANTED in part and DENIED in BACKGROUND Plaintiff fame as a singer in the 1950s 1960s. During that time and in decades that followed, Pl iff entered into a se es of recording contracts with De and its predecessors. 1 Universal Music Corp. is named. The proper defendant is UMG Recordings, Inc. 2 Plaintiff's amended aint contains nine claims. The first is for breach of contract. (Am. Compl. ~~ 73-75.) The third and seventh are for underpayment of royalties. Id. <J['ll 78-79, 91-92.} Plaintiff st to the dismissal of her second The claims were dismissed by Court order. See No. 02 Civ. 1963(RO), 2003 WL 22990060 (S.D.N.Y. Dec. Case 1:02-cv-01963-BSJ Document 93 Filed 02/11/11 Page 2 of 19 The part s entered their first agreement January 1958. (Creelan Decl. Ex. B.) Shortly after that, in January 1959, the parties signed a second agreement, which amended the rst. (Id., Ex. C.) Plaintiff signed a thi agreement January 19 Id. Ex. D.) This agreement amended the 1959 agreement. Id. Unlike prior two agreements, 1962 agreement included an ant coupling clause. (Id., Ex. D, at § 2.) It provided, "On all recordings to be made by you for us hereunder, you shall be the sole recording artist, except for background accompaniment, vocal and/or instrumental. We shall not couple your recordings with those of any other artist thout your consent." Id. In practical terms, this meant none of the recordings Plaintiff made under this agreement cou be included on compilation albums with songs from other artists without Plaintiff's consent. Four years later, in October 1966, Plaintiff signed another recording agreement. (Id., Ex. E.) Despite altering the structure of the artist- I relationship, the agreement made clear that "[a]ll of the terms and conditions of the" prior agreements, including superseding amendments, "shall applicable hereto as if 1y set forth" in the agreement. (Id. at § 4.) In January 1980, the part s signed a new recording contract. Id. Ex. F.) Unlike any of the pr r agreements, the 1980 agreement gave Defendant "the sole and exclusive right 2 Case 1:02-cv-01963-BSJ Document 93 Filed 02/11/11 Page 3 of 19 to roduce the Masters the performances embodied thereon and to manufacture there all forms of de sand works including Phonograph Records in any speed, size, or format whatsoever, coupling the Masters at Company's option other Masters not the subject hereof." Id. at § 5(b).) The plain text of this provision makes clear Defendant did not ne Plaintiff's consent to couple recordings made under this agreement. The pertinent the crux of is at issue here--was signed in November 1982. (Id., Ex. G.) It called for PI iff to deliver a new German-language recording. (Id.) All of its provisions, one, pertained to German reco The outlier p s , Section 17, provided, In consideration of this Artist hereby absolutely forever releases discharges Company, its officers, directors, employees, licensees and assi s ( "Releasees") any and all claims, demands, s, damages, liabilit s, actions, causes of action, suits, sums of money, accounts, covenants, agreements, contracts and promises law or in equi which Artist may now have or has had at any time against Releasees, whether or not the same have been subject to dispute or whe unknown, by reason of any unde , promise, contract ( ress, implied in fact or implied in law), liens, II, matter, cause, fact, thing, act or omission whatsoever from the of the world to the day of date of this agreement. Notwiths ng the foregoing, noth herein 1 absolve Company from s obligation to render account and pay royalties otherwise payable to Artist in accordance with Artist's or agreements with Company and any extensions or renewals thereof but Company 1 have no other obli ions with 3 Case 1:02-cv-01963-BSJ Document 93 Filed 02/11/11 Page 4 of 19 respect to Sides delivered to Company pursuant to s prior s. (Id. at § 17.) Plainti 's first claim is Defendant commit breach of contract, the 1982 , by including r recordings on compilation albums with songs from artists without ing her consent. (Am. Compl. ~~ 73-75.) Defendant moves for summary judgment on this claim imarily on the basis Section 17 of 1982 agreement extinguished Defendant's duty to secure ff's consent. With respect to Plaintiff's third and s claims for unde of royalties, De moves for summary judgment on the is that these cl are time-barred. Defendant's argument is rooted in the recording agreements' irement that Plainti object, in writ , to any royalty statements provided by De within six of receipt or deemed to have those statements. Because Plaintiff led to object in writing at any point prior to filing her lawsuit, Plaintiff's s claims should dismissed, acco ng to Defendant, to the extent ff seeks damages limited to the six month period immediately prior to the fil of her lawsuit. LEGAL STANDARD Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material and the movant is 4 Case 1:02-cv-01963-BSJ Document 93 Filed 02/11/11 Page 5 of 19 entitled to judgment as a mater of law." FED. R. CIV. P. 56(a). The moving party bears of "demonstrat[ing] the absence of a genuine issue of material fact." Catrett, 477 U.S. 317, 323 (1986). Although all reas e inferences and ambigu s must be drawn or resolved of the nonmoving party, "'[u]nless the nonmoving party of rs some hard evidence showing s version of the events is not wholly fanciful, summary judgment is granted to the moving party.'" See, e. v. Clinton Co un 541 F.3d --=--'­ 464, 471 (2d C 2008 ) (alteration in original) tation omitted) . ANALYSIS I. Plaintiff's Coupling Claim A. The 1982 Agreement Under New York law, "the initial question r the court on a motion r summary judgment with respect to a" c im for breach of contract "is 'whether the contract is unambiguous with respect to stion disputed by the s.'" See Law Debenture Trust Co. of New York v. Maverick Tube Co 595 F.3d 458, 465 (2d Cir. 2010) (citations Whether a contract is ambiguous "is a question of law court." See id. at 465 66 tations omitted). "'[A] written agreement that is comp , clear and unambiguous on s must be ] according to the in meaning of its terms, 5 Case 1:02-cv-01963-BSJ Document 93 Filed 02/11/11 Page 6 of 19 wi the aid of extrinsic evidence.'" Id. at 467 68 (c ations omitted). Section 17 of the 1982 agreement has two clauses. The rst "re [d] and discharge[d]" Defendant "from any and 1 covenants, agreements, contracts and promises in law or ch Artist may now have or has had at any time against" De (Cree . Ex. G, at § 17.) The second clause carved out two ions to the first clause's broad release: " shall absolve Company from its obi ion to render account and pay royalties otherwise to Artist with Artist's prior agreements with Company and extensions or renewals thereof but Company shall have with respect to Sides delivered to Company pursuant to prior Agreements." (Id. (emphasis added). The rt of se clauses is clear and unambiguous: Going forward, wi e ion of (1) rendering accountings and (2) paying royalties, De would have "no other obligations" to Pia iff, those imposed by "covenants, s, contracts and ses in law or equity[,]" that she ously or continued to have when the 1982 agreement was signed. In arguing that the duty to her consent survived Section 17's broad re to conflate the duty to render accountings and to it s with the 6 Case 1:02-cv-01963-BSJ Document 93 Filed 02/11/11 Page 7 of 19 rate duty to obtain her consent for coupling in certain circumstances. No doubt the accounts rendered and royalties under the agreements the anti-coupling clause re monies paid to her for coupled recordings. But that does not mean that the duty to render accountings or to pay ies encompassed the duty to P iff's consent prior to coupling her recordings. P iff also argues that Section 17 is ambiguous. She relies ily, however, on extrinsic 3 She points, for , to Defendant's attempts, or to the 1982 agreement, to convince her to explicitly anti­ coupl sion. (See Francis Aff., Ex. E, F.) She also points to allegedly showing De Plaintiff's consent a 1982 agreement. See id., Ex. J.) All of this is irrelevant. In cases such as s, "[w]here [the] contract is unambiguous and complete, no ext nsic evidence . will be considered." See In re lication of ~--~~~~~~~~--~- MobiTv Inc. 712 F. Supp. 2d 206, 252 (S.D.N.Y. 2010) 3 To the extent Plaintiff attempts to argue that the anti clause is a "restriction" as to an "obligation," the term "restriction" does not appear in the 1982 agreement.

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