To state a claim for equitable accounting, plaintiff must establish "(1) relations of a mutual and confidential nature; (2) money or property entrusted to the defendant imposing upon him a burden of accounting; (3) that there is no adequate legal remedy; and (4) in some cases, a demand for an accounting and a refusal." Baiul v. NBC Sports, 2016 WL 1587250, at *10 (S.D.N.Y. Apr. 19, 2016), aff'd sub nom., 708 F. App'x 710 (2d Cir. 2017) (quotation omitted). Both a claim for misappropriation of corporate opportunity and for an equitable accounting are "premised upon the existence of a confidential or fiduciary relationship."

Baiul v. NBC Sports, No. 15-cv-9920, 2016 WL 1587250, at *10 (S.D.N.Y. Apr. 19, 2016) (quoting Dayan Enters., Corp. v. Nautica Apparel, Inc., No. 03-cv-5706, 2003 WL 22832706, at *1 (S.D.N.Y. Nov. 26, 2003)). And as numerous courts in this district have found, “claims for accounting based on the defendant's alleged misappropriation and exploitation of a copyright work are preempted by the Copyright Act.” Id.; see Gary Friedrich Enters., LLC v. Marvel Enters., Inc., 713 F.Supp.2d 215, 230-31 (S.D.N.Y. 2010) (dismissing an accounting claim as preempted by the Copyright Act); Carell v. Shubert Org., Inc., 104 F.Supp.2d 236, 249 n.9 (S.D.N.Y. 2000) (same); Weber v. Geffen Recs., 63 F.Supp.2d 458, 463 (S.D.N.Y. 1999) (same); Arden v. Columbia Pictures Indus., Inc., 908 F.Supp. 1248, 1264 (S.D.N.Y. 1995) (same); see also Baiul v. NBC Sports, 708 Fed.Appx. 710, 712-13 (2d Cir. Sept. 7, 2017) (summary order) (affirming the district-court decision in Baiul and noting that both

D. Ariz. Mar. 3, 2020); Baiul v. NBC Sports, 2016 U.S. Dist. LEXIS 52291, *33 (S.D. N.Y. Apr. 19, 2016); Our House Films, LLC v. Tunnel, Inc., 2018 U.S. Dist. LEXIS 223439, *6 (C.D. Cal. Dec. 11, 2018); Stavrinides v. Vin De Bona, 2018 U.S. Dist. LEXIS 41305, *15-*16 (C.D. Cal. Mar. 12, 2018); Motown Record Corp. v. George A. Hormel & Co., 657 F.Supp. 1236, 1241 (C.D. Cal. 1987). In terms of the Copyright Act, an accounting is a remedy when there is a dispute concerning revenues from a copyright between co-owners of the copyright.

Unjust enrichment is also subject to a six-year limitations period, in which case the cause of action "accrues upon the occurrence of the wrongful act giving rise to a duty of restitution." Baiul v. NBC Sports, No. 15-CV-9920, 2016 WL 1587250, at *10 (S.D.N.Y. Apr. 19, 2016) (quotation marks omitted), aff'd sub nom. Baiul v. NBC Sports, a division of NBCUniversal Media LLC, 708 Fed. App'x 710 (2d Cir. 2017). Similarly, Plaintiffs' claim for breach of fiduciary duty sounds in fraud, and, as such, it is subject to the same six-year limitations period.

See Gollomp v. Spitzer, 568 F.3d 355, 369-72 (2d Cir. 2009) (affirming a sanctions award where, among other things, the plaintiff filed a second amended complaint reiterating frivolous claims after being put on notice by several courts, counsel for New York State, and the assigned magistrate judge that the claims were barred); Nemeroff v. Abelson, 704 F.2d 652, 659 (2d Cir. 1983) ("[T]he District Court was probably entitled to find bad faith solely because Nemeroff and his attorneys elected to pursue the matter for several months after July 19, when they should have realized that they had no support for their charges." (emphasis added)); Baiul v. NBC Sports, No. 15-CV-9920 (KBF), 2016 WL 1587250, at *5-6 (S.D.N.Y. Apr. 19, 2016) (awarding sanctions where, among other things, the plaintiffs actively pursued a claim for breach of a specific written contract "for more than a year after plaintiffs admit they learned" they had never entered into that contract (emphasis added)). Here, as noted, after amending the Complaint, Plaintiffs took no further steps — at least in Court — to pursue their copyright claim, but instead voluntarily dismissed the case, albeit at the (almost literal) eleventh hour.

And the Court's own research confirms that there have been many such cases. See, e.g., Seven Arts Filmed Entm't Ltd. v. Jonesfilm, 538 F. App'x 444, 447 (5th Cir. 2013) (per curiam) (observing that "disregard for the district court's order was but one installment in the continuing tale of Appellants' contemptuous conduct" and affirming sanction imposed by district court on, among others, SAP and Mr. Hoffman); Seven Arts Pictures PLC v. Jonesfilm, 311 F. App'x 962, 965 (9th Cir. 2009) (memorandum opinion) (upholding award of sanctions against, among others, SAP and Mr. Hoffman for failure to comply with court order enforcing an arbitration award), as amended on denial of reh'g and reh'g en banc (Mar. 25, 2009); Baiul v. NBC Sports, No. 15 Civ. 9920 (KBF), 2016 WL 1587250, at *15 (S.D.N.Y. Apr. 19, 2016) (imposing sanctions on Mr. Markovich, observing: "If ever this Court has witnessed attorney conduct more vexatious and harassing or deserving of § 1927 sanctions, the Court has difficulty in recalling that occasion."); Too Easy Entm't, LLC v. Seven Arts Pictures, Inc., No. 2006-CA-0015, 943 So.2d 1194, 1197 (La. Ct. App. 2006) (affirming award of sanctions on SAP and Mr. Hoffman for failure to appear at debtors examination), on reh'g (Dec. 7, 2006), aff'd on reh'g, 2006-CA-0015, 954 So.2d 790 (La. Ct. App. 2007).

"[U]nder New York law, the doctrines of equitable tolling or equitable estoppel may be invoked to defeat a statute of limitations defense when the plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action." Baiul v. NBC Sports, No. 15-cv-9920 (KBF), 2016 WL 1587250, at *11 (S.D.N.Y. Apr. 19, 2016). "[E]quitable tolling of a statute of limitations is a 'rare remedy to be applied in unusual circumstances.'" Mahmood, 2012 WL 242836, at *5 (quoting Wallace v. Kato, 549 U.S. 384, 396 (2007)).