Opinion
No. 97 Civ. 7700 (RWS).
December 7, 2000.
COBRIN GITTES Attorney for Plaintiff New York, NY, By: PETER T. COBRIN, ESQ. OREN J. WARSHAVSKY, ESQ. Of Counsel.
SYLVIA ROBINSON On Behalf of Pro Se Defendants Englewood, NJ.
OPINION
Following an opinion of December 1, 2000, reducing a prior copyright infringement award against Sugar Hill Music Publishing, Inc., Sugar Hill Records, Ltd., Sugar Hill Records, Inc., Sugar Hill Music, Inc., Sugar Hill Music Publishing, Ltd., Twenty-Nine Black Music, (the "corporate defendants"), and Joseph Robinson, Sr. (collectively "defendants"), plaintiff Tuff-N-Rumble, d/b/a Tuff City Records ("Tuff"), moved to enter judgment for $1,991,921.70. Sylvia Robinson ("Robinson"), president of defendant Twenty-Nine Black Music and defendant Robinson's ex-wife, has filed a pro se "emergency motion" to amend the amended judgment on behalf of all defendants.
Defendant Joseph Robinson, Sr. passed away in November, 2000.
For the reasons set forth below, the defendants' motion to amend is stricken, as are all submissions filed "pro se" by Sylvia Robinson on behalf of the defendants. The December 1, 2000 opinion is vacated and the plaintiff's motion to enter an amended judgment is denied as moot. The defendants are granted thirty days to retain counsel to make any further applications. If they fail to do so, the stay of the March 29, 2000 judgment will be lifted, and the award of for $2,008,914.64 will be executed.
Procedural History
The facts and prior proceedings in this copyright infringement action have been set forth in five decisions of this Court, familiarity with which is assumed. See Tuff-n-Rumble V; Tuff-n-Rumble Management, Inc. v. Sugarhill Music Publ'g Inc., No. 97 Civ. 7700, (S.D.N.Y. Dec. 1, 2000) (Tuff-n-Rumble V); Tuff-n-Rumble V; Tuff-n-Rumble Management, Inc. v. Sugarhill Music Publ'g Inc., No. 97 Civ. 7700, 2000 WL 274192 (S.D.N.Y. March 13, 2000) ("Tuff-n-Rumble IV"); Tuff-n-Rumble Management, Inc. v. Sugarhill Music Publ'g Inc., 75 F. Supp.2d 242 (S.D.N.Y. 1999) ("Tuff-n-Rumble III"); Tuff-n-Rumble Management, Inc. v. Sugarhill Music Publ'g Inc., 49 F. Supp.2d 673 (S.D.N.Y. 1999) ("Tuff-n-Rumble II");Tuff-n-Rumble Management, Inc. v. Sugarhill Music Publ'g Inc., 8 F. Supp.2d 357 (S.D.N.Y. 1998) ("Tuff-n-Rumble I"). Facts and proceedings relevant to the instant opinion are set forth below.
Judgment for Tuff was entered on March 29, 2000, including a damages award totaling $2,008,914.64, after Tuff's motions for summary judgment and a damages determination were unopposed. The Court held that the defendants had infringed on the plaintiff's copyright, and that the corporate defendants were mere alter egos of their principals, defendant Joseph Robinson, Sr., and his ex-wife, Sylvia Robinson.
Defendants substituted counsel on April 12, 2000. Defendants' new counsel sought a temporary stay of enforcement of the judgment pending the resolution of a motion to dismiss for lack of subject matter jurisdiction. Enforcement of the judgment was stayed pending the outcome of that motion, which was denied on June 13, 2000. The June opinion granted plaintiffs leave to move for a more accurate determination of damages within twenty days and again stayed execution of the judgment.
At some point during the pendency of that motion, defense counsel, Cinque Cinque, stopped representing the defendants, although no formal withdrawal was filed. Since defense counsel effectively withdrew, both plaintiff and defendants have repeatedly complained of receiving no notice or late notice of the other's filings.
On June 22, 2000, Sylvia Robinson moved pro se on behalf of Twenty-Nine Black Music for reconsideration of the judgment holding TNBM liable due to lack of notice of the pendency of the suit. She claimed that Cinque Cinque had never represented TNBM although it had filed papers on TNBM's behalf and all the corporate defendants are intertwined. Robinson filed apro se "motion to reconsider" on behalf of all defendants on July 26, 2000. Based upon the submissions of both parties in response to this motion, this Court issued an opinion on December 1, 2000, amending the judgment against all defendants to approximately $1.9 million.
On December 5, 2000, Tuff filed a proposed amended judgment pursuant to the December 1, 2000 opinion. On the same date, Sylvia Robinson filed an "emergency motion" to amend the December 1 opinion, attaching additional evidence in support of her proposed recalculation of damages. Both submissions were deemed motions returnable on December 13, 2000.
On December 6, 2000, Sylvia Robinson filed a motion to adjourn the return date on the motions until January 17, 2001, on the grounds that she will be out of the country on that date and therefore unable to attend oral argument. Tuff opposes the motion.
In addition, a factual hearing on Tuff's pending motion for contempt is currently scheduled for January 18, 2001. Sylvia Robinson, and her son Joseph ("Joey") Robinson, Jr., appeared on behalf of defendants at the oral argument on that motion in November 2000.
Discussion
The December 1, 2000 opinion amending the award against the defendants was entered upon consideration of evidence that was not properly presented to the Court. Although neither party has raised this issue, the Court addresses it sua sponte pursuant to Rule 60(b)(6) in order to cure the error.
I. The Pro Se Submissions on Behalf of the Corporate Defendants and the Opinion Based Thereon Were Improper
Although Rule 60(b)(6) generally authorizes courts to rectify errors upon a party's motion if the interests of justice so dictate, district courts may do so sua sponte if appropriate and the parties are on notice of the grounds for the decision. See Fed.R.Civ.P. 60(b);Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Although the Court has not issued formal notice to the parties, both sides were aware that Sylvia Robinson was purporting to represent all the corporate defendants, and the instant decision to vacate the opinion which relied on her submissions in violation of the statute will not materially prejudice either party. The decision that is to be vacated only reduced the award from $2,008,914.64 to $1,991,921.70, and no final judgment has yet been entered pursuant to it. Therefore, the $2,008,914.64 judgment is still in effect, although its enforcement has been stayed.
Parties to federal litigation are authorized to be represented either "personally or by counsel." 28 U.S.C. § 1654. Courts have construed this statute as barring corporations and partnerships from proceeding "pro se" and requiring that they be represented by counsel. See Rowland v. California Men's Colony, 506 U.S. 194, 202 (1993) (citations omitted) (" 28 U.S.C. § 1654. . . does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney"); Eagle Associates, 926 F.2d at 1308 (2d Cir. 1991) (Section 1654 "does not allow for unlicensed laymen to represent anyone else other than themselves. . . . Courts also have interpreted this section to preclude a corporation from appearing through a lay representative."); Dow Chem. Pac. Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 22 (2d Cir. 1986).
Although she is a principal of the corporate defendants, Sylvia Robinson is neither a named defendant nor an attorney, and therefore § 1654 precludes her from representing any of the defendants. See Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997); Eagle Associates v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991) (Section 1654 "does not allow for unlicensed laymen to represent anyone else other than themselves. . . .") (citations and internal quotation marks omitted);Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983);see also Ethan H. v. State of New Hampshire, No. 92-1098, 968 F.2d 1210, 1992 WL 167299, *1 (1st Cir. July 21, 1992) (table) (holding that § 1654 bars non-lawyer from representing anyone but himself or herself); Bragg v. Sec'y of Health and Human Services, No. 88-2044, 871 F.2d 1087, 1989 WL 27795, *1 (6th Cir. March 27, 1989) (table) (dismissing appeal because appellant's non-attorney daughter represented her); Caslin v. Radcliffe, 168 F.R.D. 249, 255 (D. Neb. 1996) ("a pro se litigant has no right to have a person who is not a lawyer act in the capacity of a lawyer for the litigant.")
Nor is her son, Joseph ("Joey") Robinson, Jr., who appeared on defendants' behalf at the oral argument on Tuff's motion for contempt in November of 2000.
The defendants were represented by counsel through March 29, 2000, when the $2 million judgment was entered on March 29, 2000. Since June 2000, however, Sylvia Robinson has filed all papers pro se on behalf of the corporate defendants. As these submissions violated section 1654, they are hereby stricken, and the opinion issued pursuant to them is hereby vacated.
As a principal of the corporate defendants, Sylvia Robinson is hereby ordered to retain counsel on behalf of the defendants within thirty days of the filing of this opinion. Failure to do so will result in the defendants' default, pursuant to which the stay of the March 29, 2000 judgment will be lifted and the $2,008,914.64 award executed. See Eagle Associates, 926 F.2d at 1310 (2d Cir. 1991) (affirming default judgment against defendant partnership for violating district court's order to retain counsel); Matter of Soft Drink Brewery Workers Union Local 812 v. Forest Glen Distributing, Inc., No. 95 Civ. 8071 (MBM), 1996 WL 346459, *2 (S.D.N.Y. June 25, 1996) (same result for corporate defendant). It is noted that failure to appear by counsel at the contempt motion presently scheduled for January 18, 2001 will similarly result in default.
Conclusion
For the aforementioned reasons, all pro se submissions filed by Sylvia Robinson are stricken, the December 1, 2000 opinion is vacated, and the plaintiff's motion to enter an amended judgment is denied as moot.
Defendants are ordered to retain counsel within thirty days of the filing of this opinion, to represent them at the contempt hearing currently scheduled for January 18, 2001, and to file any further applications with the Court. If counsel is not retained and an appearance not filed with the Court within thirty days of the filing of this opinion, the stay of the March 29, 2000 judgment against defendants in the amount of $2,008,914.64 will be lifted.
It is so ordered.