Opinion
99 Civ. 2664 (LBS) (JCF).
March 16, 2001.
MEMORANDUM AND ORDER
Yoko Ono Lennon, the widow of the late John Lennon and a renowned musician and artist in her own right, brings this action against Frederic Seaman, a former personal assistant to the Lennon household. Ms. Lennon alleges that Mr. Seaman stole items of property from the Lennon home, including photographs, and that he has disseminated personal information about the Lennons in violation of his employment agreement. The complaint includes causes of action for copyright infringement, declaratory judgment, recovery of chattels, conversion, unjust enrichment, and breach of contract and seeks injunctive relief and damages.
The plaintiff now moves pursuant to Rule 15 of the Federal Rules of Civil Procedure to amend and supplement her complaint. She also seeks reconsideration of a discovery order limiting the scope of a continued deposition of Mr. Seaman. The defendant opposes the motion to amend on the grounds that it was unduly delayed and brought in bad faith, that the proposed new claims are futile, and that permitting amendment would be prejudicial. For the reasons that follow, the plaintiff's motion to amend is granted, and the discovery issue is subsumed in the revised pretrial schedule.
Background
Mr. Seaman was employed by the Lennons from early 1979 until late 1981. (Second Amended Complaint ("2d Am. Compl.") ¶ 2). At the time he was hired in February 1979, the defendant apparently executed a memorandum of understanding that stated:
You have specifically agreed, as a condition of your employment, at no time, without our prior express written consent to same, whether you are then employed by us or not, not to divulge, exploit, commercially or otherwise, or publicize, in any manner whatsoever, any information, facts, anecdotes, or otherwise relating to us in any manner, including but not limited to, books, fiction or non-fiction, magazine articles, press interviews, television reports, documentaries, radio interviews, recordings, or any other manner relating to the public dissemination of information through the media or otherwise.
(2d Am. Compl. ¶ 5 Exh. A). During the course of his employment for the Lennons, Mr. Seaman ran errands, cared for their son Sean, accompanied the family on trips, and took photographs of family events. (2d Am. Compl. ¶¶ 2, 6).
On December 8, 1980, John Lennon was shot and killed by a deranged fan. According to the complaint, Mr. Seaman immediately set out to benefit financially from the public interest created by Mr. Lennon's death. Within two weeks he had entered into a contract with a Bob Rosen to implement "Project Walrus" (presumably referring to the Beatles' song "I am the Walrus"), the purposes of which included stealing Mr. Lennon's personal possessions and establishing Mr. Seaman as the ultimate authority on the personal life of John Lennon. (2d Am. Compl. ¶¶ 10-11). Then, while continuing to work for Ms. Lennon, the defendant allegedly filched property from the Lennons' office and apartments, including Mr. Lennon's journals, love letters, paintings, photographs, and unreleased recordings. (2d Am. Compl. ¶¶ 13-14, 16). In December 1981, Ms. Lennon fired Mr. Seaman.
In December 1982, Mr. Rosen, who felt that he had been cut out of "Project Walrus," contacted Ms. Lennon and revealed what had taken place. (2d Am. Compl. ¶¶ 17-18). After failing to resolve matters privately with the defendant, Ms. Lennon went to the police, who arrested Mr. Seaman. (2d Am. Compl. ¶¶ 19-20). On May 27, 1983, the defendant pled guilty to grand larceny in the second degree in New York State Supreme Court, New York County. (2d Am. Compl. ¶ 21 Exh. B). As part of the plea agreement, he promised to "return any and all property, in his possession or which he has access to, wrongfully taken, obtained or withheld from Lenono [the Lennons' business entity], John Lennon, Yoko Ono Lennon, Sean Lennon, or the estate of John Lennon." (2d Am. Compl., Exh. B at ¶ 4(d)). Accordingly, he returned to Ms. Lennon numerous personal items including photographs, letters, drawings, and Mr. Lennon's journals. (2d Am. Compl. ¶ 22).
However, according to the complaint, it later came to Ms. Lennon's attention that the defendant had retained other stolen property, including photographs that were displayed in publications and through the broadcast media. (2d Am. Compl. ¶¶ 25-27, 35). Mr. Seaman also asserted ownership of images that Ms. Lennon had supplied to Capitol Records for publication in connection with a set of compact discs. (2d Am. Compl. ¶¶ 28-34). Upon learning these facts, Ms. Lennon commenced this action in April 1999. She filed her Second Amended Complaint on May 27, 1999.
Since that time, the plaintiff has learned new information that she now seeks to incorporate in a Third Amended Complaint. First, a number of recent publications authored by Mr. Seaman have contained photographs of the Lennons allegedly provided by Mr. Seaman in violation of copyrights owned by Ms. Lennon. The publications include "The Last Day in the Life of John Lennon," appearing in the December 5, 1999 edition of The Mail on Sunday, a British tabloid; "Life with the Lennons," in the December 13, 1999 edition of Womans Day; "Yoko's Bizarre Plot," appearing in Womans Day on December 20, 1999; two articles in Britian's Sunday Mirror appearing on September 17 and September 24, 2000; and "The Beginning of John's Last Album," in the September/October edition of the Canadian publication Beatlology. (Proposed Third Amended Complaint ("3d Am. Compl.") ¶¶ 39-50, attached as Exh. A to Affidavit of Paul V. Licalsi dated Nov. 13, 2000 ("LiCalsi Aff."). In addition, Mr. Seaman supplied to a British television program in September 2000, photographs over which Ms. Lennon asserts copyright ownership. (3d Am. Compl. ¶¶ 51-52). The subjects of these allegations shall be referred to collectively as the "Newly Discovered Publications."
Second, during the summer of 2000, the plaintiff determined that notwithstanding his plea agreement, Mr. Seaman had failed to return property stolen from the Lennons, and instead had sold it as memorabilia. The property, which was purportedly sold to third-parties between 1994 and 1997, includes a draft letter from John Lennon to former Beatle Paul McCartney and his wife, a letter from Mr. Lennon to rock musician Eric Clapton, drafts of lyrics written by Mr. Lennon, a draft letter from Mr. Lennon to Queen Elizabeth, and original artwork by Mr. Lennon. (3d Am. Compl. ¶¶ 53-59). These items shall be referred to as the "Recently Discovered Stolen Property."
The plaintiff seeks to amend her complaint to add allegations concerning the Newly Discovered Publications and the Recently Discovered Stolen Property.
Ms. Lennon also seeks to supplement two other claims. In the Second Amended Complaint she alleged that Mr. Seaman had wrongfully supplied Lennon family photographs for a program aired on the Fox Family Channel on February 15, 1999. (2d Am. Compl. ¶ 25). She now further alleges that the defendants provided to that program a videotape for which the plaintiff owns the copyright. (3d Am. Compl. ¶ 26). Second, Ms. Lennon now asserts that in 1996, Mr. Seaman appeared on another television show and provided information and private family photographs in violation of his employment agreement. (3d Am. Compl. ¶ 27).
Discussion
A motion to amend is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which states that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see also Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990). Notwithstanding the liberality of the general rule, "it is within the sound discretion of the court whether to grant leave to amend," John Hancock Mutual Life Insurance Co. v. Amerford International Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citation omitted), and for the proper reasons, a court may deny permission to amend in whole or in part. See H.L. Hayden Co. v. Siemens Medical Systems, Inc., 112 F.R.D. 417, 419 (S.D.N.Y. 1986). In discussing the use of this discretion, the Supreme Court has stated:
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should . . . be "freely given."
Foman v. Davis, 371 U.S. 178, 182 (1962). The same standard applies as well to a motion under Rule 15(d) to file a supplemental pleading to assert facts arising after the filing of the original complaint. See Quaratino v. Tiffany Co., 71 F.3d 58, 66 (2d Cir. 1995); New York State National Organization for Women v. Cuomo, 182 F.R.D. 30, 36 (S.D.N.Y. 1998).
A. Delay, Prejudice and Bad Faith
Mr. Seaman contends that the plaintiff has unduly delayed seeking amendment. The motion was made on the eve of the discovery deadline, and, according to the defendant, the plaintiff had ample opportunity to develop the evidence that underlies her new claims.
Mr. Seaman's argument fails in two respects. First, some of the Newly Discovered Publications only appeared a month before the plaintiff moved to amend, and none were in existence when the Second Amended Complaint was filed. Second, the plaintiff's failure to identify earlier some of the publications as well as the Recently Discovered Stolen Property is directly attributable to Mr. Seaman's failure to be forthcoming in discovery.
On March 23, 2000, I issued an order requiring Mr. Seaman to produce, among other things, "any and all documents concerning any article or other publication concerning plaintiff or John Lennon which defendant authored in whole or in part, or for which defendant provided any information or material[.]" (Order dated March 23, 2000, incorporating by reference Letter of Amy J. Lippman dated Feb. 22, 2000, attached as Exh. K to LiCalsi Aff.). It was not until his continued deposition on November 6, 2000, that Mr. Seaman revealed the Newly Discovered Publications. (LiCalsi Aff. ¶¶ 23, 26). Although some of these had only recently been published, others had been disseminated prior to my March 23 order, and Mr. Seaman's failure to produce them immediately in response to that order is unexplained.
Even more disturbing is his apparent cover-up of the Recently Discovered Stolen Property. At his deposition Mr. Seaman testified as follows:
Q. Do you recall ever offering to any dealer in memorabilia, or other person, any Lennon related items?
A. No.
(Continued Deposition of Frederic Seaman ("Seaman Dep."), at 599, excerpts attached as Exh. F to Affidavit of Paul V. LiCalsi dated Nov. 30, 2000 ("LiCalsi Reply Aff.")). Yet three different dealers have submitted affidavits attesting to the fact that the defendant either offered for sale or actually sold Lennon articles to them. (Affidavit of Gary Zimet dated Nov. 28, 2000 ("Zimet Aff."), ¶¶ 2-3; Affidavit of Bart Tarulli dated Nov. 27, 2000 ("Tarulli Aff."), ¶¶ 3-4; Affidavit of Edward Kosinski dated Nov. 30, 2000 ("Kosinski Aff."), ¶ 3).
With respect to his contacts with one of these dealers, Gary Zimet, Mr. Seaman denied selling him certain specific items, and, indeed, denied ever having been paid by him:
MR. LiCALSI: I would like to have marked
Plaintiff's Exhibit 54. Just for identification purposes, 54 appears to be handwritten lyrics to the song "Cold Turkey."
* * *
Q. Mr. Seaman, have you ever seen any of the material that appears on Plaintiff's Exhibit 54 before?
A. No.
Q. Did you ever have in your possession handwritten lyrics by John Lennon of the song "Cold Turkey"?
A. No.
Q. You did not give this material to Mr. Zimet or sell this material to Mr. Zimet?
A. No.
MR. LiCALSI: I would like to mark, as Plaintiff's Exhibit 55, what appear to be handwritten lyrics to the song "Rock `n Roll People."
* * *
Q. Have you ever seen what's been marked as Plaintiff's Exhibit 55 or any of the material that appears on 55?
A. No.
Q. Were you ever in possession of any of this material?
A. No.
Q. Did you ever give or sell handwritten lyrics to the song "Rock `n Roll People" to Mr. Zimet?
A. No.
(Seaman Dep. at 617-18).
* * *
Q. Has Mr. Zimet ever given you any money?
A. No.
Q. Never?
A. No.
Q. Cash? Check? In any form?
A. No.
(Seaman Dep. at 612, excerpt attached to letter of Amy J. Lippman dated Feb. 8, 2001 ("Lippman Letter")).
This testimony is again contradicted by Mr. Zimet. He has represented that the handwritten lyrics for "Cold Turkey" and "Rock `n Roll People" are among the specific items he bought from Mr. Seaman. (Zimet Aff. ¶ 3(e), (f)). Moreover, Mr. Zimet has produced a copy of a check for $48,000 that he wrote to Mr. Seaman, that Mr. Seaman endorsed, and that represented payment for some of the Lennon memorabilia. (Lippman Letter, attachment).
In an affidavit dated February 28, 2001, Mr. Seaman now states that his memory has been "refreshed" concerning his receipt of $48,000 from Mr. Zimet.
Finally, Mr. Seaman testified as follows concerning John Lennon's diaries:
Q. Did you ever tell Mr. Kosinski or any other dealer that you could get them copies of John Lennon's diaries?
A. No.
(Seaman Dep. at 599). Edward Kosinski, however, has represented that Mr. Seaman periodically told him that he had or could get access to John Lennon's original diaries and offered to sell them to him. (Kosinski Aff. ¶ 3).
A litigant cannot withhold evidence requested in discovery and testify falsely under oath and then claim that his adversary has delayed in asserting claims relating to the information that was concealed. Thus, Ms. Lennon is not responsible for any delay here, and it was the defendant who acted in bad faith.
Even if the plaintiff had been dilatory in moving to amend, that alone would not warrant denying the motion. Delay, absent bad faith or prejudice, is not a sufficient basis for denying leave to amend. See Parker v. Columbia Pictures Industries, 204 F.3d 326, 339 (2d Cir. 2000); Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993); Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987); In re Horizon Cruises Litigation, 101 F. Supp.2d 204, 215 (S.D.N.Y. 2000). Here the only prejudice that Mr. Seaman asserts is the expense of additional litigation and delay in obtaining a resolution of the action. But "the adverse party's burden of undertaking discovery, standing alone, does not suffice to warrant denial of a motion to amend a pleading." United States v. Continental Illinois National Bank Trust Co., 889 F.2d 1248, 1255 (2d Cir. 1989) (citation omitted); see also A.V. by Versace, Inc. v. Gianni Versace S.p.A., 87 F. Supp.2d 281, 299 (S.D.N.Y. 2000). Of course, amendment may be denied where it would, without good cause, disrupt an existing discovery deadline. See Parker, 204 F.3d at 339-40. However, the defendant's own abuse of the discovery process, as detailed above, provides ample good cause in this case.
B. Futility
Mr. Seaman also argues that the plaintiff's motion should be denied because the proposed amendments would be futile in two respects: the new claims are time-barred, and the Court should not exercise supplemental jurisdiction over them. Neither contention has merit.
The time-bar argument relates to the Recently Discovered Stolen Property. Mr. Seaman notes that the statute of limitations in New York for a claim of conversion is three years. Since the proposed pleading asserts that Mr. Seaman sold the items at issue between 1994 and 1997 (3d Am. Compl. ¶¶ 54, 56, 58), he maintains that any claims relating to them are time-barred.
This issue has already been resolved against the defendant. In an opinion dated Sept. 8, 1999 the Honorable Leonard B. Sand, U.S.D.J., ruled on Mr. Seaman's motion to dismiss the complaint. Lennon v. Seaman, 63 F. Supp.2d 428 (S.D.N.Y. 1999). Among other things, Judge Sand denied the motion to dismiss the conversion claims as time-barred. He observed that "an intentional concealment of the misconduct that is relied upon by the plaintiff can equitably estop a defendant from utilizing the defense of statute of limitations." Id. at 440 (citing Simcuski v. Saeli, 44 N.Y.2d 442, 448-49, 406 N.Y.S.2d 259, 262 (1978)). Since Mr. Seaman allegedly misrepresented that he had complied with his obligations under the plea agreement to return all property taken from the Lennons, he could not rely on a limitations defense. Id. at 440-41.
That reasoning applies with full force here. In order to determine whether a proposed amendment is futile, a court applies the same standard as it does in ruling on a motion to dismiss. See Milanese v. Rust-Oleum Corp., F.3d ___, No. 00-7527, 2001 WL 197950, at *5 (2d Cir. March 1, 2001); Nettis v. Levitt, F.3d, ___, No. 99-9391, 2001 WL 170603, at *6 n. 4 (2d Cir. Feb. 22, 2001). The same facts that supported the plaintiff's fraudulent concealment argument in connection with the Second Amended Complaint apply to the Recently Discovered Stolen Property. Since Judge Sand found them sufficient for purposes of denying the defendant's motion to dismiss on limitations grounds, they are likewise adequate to support the proposed amendments against the claim of futility.
Finally, a federal court has supplemental jurisdiction to hear state law claims that are so related to federal claims that they form part of the same case or controversy. 28 U.S.C. § 1367(a); King v. Crossland Savings Bank, 111 F.3d 251, 256 (2d Cir. 1997). This condition is satisfied if the state and federal claims derive from a common nucleus of operative facts. See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966); Rolls-Royce Motor Cars, Inc. v. Schudroff, 929 F. Supp. 117, 128-29 (S.D.N.Y. 1996); Sigmon v. Parker Chapin Flattau Klimpl, 901 F. Supp. 667, 680 (S.D.N.Y. 1995). The standard is "construed generously," Smylis v. City of New York, 983 F. Supp. 478, 484 (S.D.N Y 1997), requiring only a "loose factual connection" among the claims. Solow v. Jenkins, No. 98 Civ. 8726, 2000 WL 489667, at *3 (S.D.N.Y., April 25, 2000); see also Zaloom v. Trupin, 86 Civ. 465, 1991 WL 270458, at *3 (S.D.N.Y. Dec. 10, 1991).
These requirements are easily met here. Ms. Lennon's federal copyright claims are based on Mr. Seaman's use of photographs created, in the plaintiff's view, as works-for-hire while he was in the employ of the Lennon family. The defendant then made off with these photographs as part of a scheme to profit from his relation to the Lennons. The proposed claims relating to the Newly Discovered Publications are based directly on Mr. Seaman's use of such photographs. The claims concerning the Recently Discovered Stolen Property pertain to other items also taken from the Lennon household as part of Mr. Seaman's scheme. It is within the court's authority, then, to exercise supplemental jurisdiction over all of the additional claims.
In light of the lenient standard for amending pleadings and the defendant's failure to advance any persuasive argument against amendment, the plaintiff's motion is granted.
C. Discovery
Because the original discovery deadline has passed, it is necessary to reopen discovery for purposes only of exploring issues presented by the amendments to the complaint. Therefore, discovery shall be permitted for a period of thirty days from the date of this order and shall be limited to information relevant to any allegations pled for the first time in the Third Amended Complaint. Any document request propounded during this period shall be responded to within ten days. Both the plaintiff and the defendant may be deposed for no more than one additional day in connection with the new allegations.
Conclusion
For the reasons set forth above, the plaintiff's motion to serve and file a Third Amended Complaint is granted. The limited discovery provided for in this order shall be completed within thirty days. The pretrial order shall be submitted thirty days after completion of discovery unless any dispositive motion is filed by that date. If such a motion is filed, the pretrial order shall be due thirty days after the motion is decided.
SO ORDERED.