Opinion
19 Civ. 4355 (VM) (GWG)
05-22-2023
UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. COLLECTOR'S COFFEE, INC., et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
In 1945, the celebrated baseball player Jackie Robinson signed a contract to play for the Montreal Royals' 1946 baseball season. In 1947, Robinson signed a contract to play for the Brooklyn Dodgers' 1947 baseball season. Those contracts are now being held by the United States Marshals Service. Copies of the contracts are annexed hereto. The issue raised in the motions now before this Court is who is the rightful owner of these two contracts.
This suit was brought by the United States Securities and Exchange Commission against Collector's Coffee, Inc. (“CCI”) and its principal, Mykalai Kontilai, alleging securities fraud. The sole asset of any value held by CCI are the two contracts signed by Jackie Robinson, which CCI bought in 2013 for $2 million. After this suit was filed, the contracts were placed in the custody of the United States Marshals Service and are being kept in storage pending the lawsuit's outcome. An investor group consisting of Adobe Investments, LLC; SDJ Investments, LLC; and Darren Sivertsen (collectively. “the Holders”) has intervened in this action, claiming ownership of the contracts because the contracts were collateral for approximately $6 million in loans they made to CCI, which are now in default. The Jackie Robinson Foundation, Inc. (“JRF”), which was given the Dodgers' rights in the contracts as a gift, has also intervened seeking a declaration that it is the rightful owner.
The Holders have now filed a motion seeking summary judgment on their claim that CCI had title to the Contracts at the time the Holders made their loans to CCI and JRF has crossmoved for summary judgment against CCI seeking a declaratory judgment as to its own claim to title. For the reasons stated below, neither side should be granted summary judgment because there are questions of fact as to who owns the contracts that must be resolved by a jury.
See Intervenor-Plaintiffs' Memorandum of Law, filed Nov. 9, 2022 (Docket # 1118) (“Holders Mem.”); Declaration of Robert DeMarco, filed Nov. 9, 2022 (Docket # 1120) (“First DeMarco Decl.”); Memorandum of Law in Support of Intervenor-Defendant's Motion for Summary Judgment, filed Nov. 9, 2022 (Docket # 1122) (“JRF Mem.”); Declaration of Seth Spitzer, filed Nov. 9, 2022 (Docket # 1124) (“First Spitzer Decl.”); Declaration of Robert DeMarco, filed Nov. 9, 2022 (Docket # 1125) (“Second DeMarco Decl.”); Intervenor-Plaintiffs' Memorandum of Law in Support of Opposition, filed Dec. 14, 2022 (Docket # 1139) (“Holders Opp.”); Declaration of Robert DeMarco, filed Dec. 14, 2022 (Docket # 1140) (“Third DeMarco Decl.”); Memorandum of Law of Intervenor-Defendant in Opposition to Intervenor-Plaintiffs' Motion, filed Dec. 14, 2022 (Docket # 1141) (“JRF Opp.”); Declaration of Seth Spitzer, filed Dec. 14, 2022 (Docket # 1143) (“Second Spitzer Decl.”); Defendant's Opposition to the Jackie Robinson Foundation's Motion for Summary Judgment, filed Dec. 14, 2022 (Docket # 1144) (“CCI Opp.”); Declaration of James Ardoin, filed Dec. 14, 2022 (Docket # 1145) (“Ardoin Decl.”); Intervenor-Plaintiffs' Memorandum of Law in Support of Reply, filed Jan. 6, 2023 (Docket # 1146) (“Holders Reply”); Reply of Intervenor-Defendant, filed Jan. 6, 2023 (Docket # 1148) (“JRF Reply”); Declaration of Seth Spitzer, filed Jan. 6, 2023 (Docket # 1149) (“Third Spitzer Decl.”).
For purposes of these motions, we assume that trial of any issues raised would be presented to a jury for decision. Our so stating should not be taken as to a ruling whether either side is in fact entitled to a jury trial as opposed to a bench trial. Neither side has addressed this question in their briefing and thus we do not address it either.
I. BACKGROUND
The following facts are undisputed except as otherwise stated.
In October 1945, Jackie Robinson signed a contract with the minor league Montreal
Royals baseball team to play for the 1946 season. See Holders' Response to JRF's Statement of Material Facts, filed Dec. 14, 2022 (Docket # 1138) (“Holders 56.1 Response”), at ¶ 7. The contract also bore the signature of Royals President Hector Racine and a stamp on the final page above Robinson's signature stating that Robinson “acknowledge[d] receipt of duplicate of executed contract.” See Contract, annexed as Exhibit C to First Spitzer Decl. (Docket # 1124-2). At the time, the Montreal Royals were a minor league affiliate of the Brooklyn Dodgers, which owned a “significant” or “controlling” interest in the team. Holders 56.1 Response ¶ 6. In April 1947, Robinson signed a major league contract with the Brooklyn Dodgers. Id. ¶ 9; see Contract, annexed as Exhibit D to First Spitzer Decl. (Docket # 1124-2). The contract was stamped “Approved” and signed by Dodgers President Branch Rickey and Ford Frick, the president of the National League of Professional Baseball Clubs. Holders 56.1 Response ¶ 9. Id. Both the Royals and Dodgers contracts (collectively, the “Contracts”) followed the “Uniform Player Contract” (“UPC”) format used by the baseball leagues at the time. Id. ¶ 12.
Temporally, the next piece of evidence referencing the existence of either of the contracts is an article published in the Brooklyn Daily Eagle on February 10, 1948. See Exhibit to Show Part Played by Negroes in Boro Since 1660, Brooklyn Daily Eagle (Feb. 10, 1948), annexed as Exhibit 22 to First DeMarco Decl. (Docket # 1120-22) (“1948 Article”). This article describes an exhibit “depicting the part played by Negro residents of Brooklyn from 1660 to the present time” in the Brooklyn Hall of Records “as part of the borough celebration of Negro History Week.” Id. The 1948 Article states that the exhibit was arranged by “Borough Historian James A. Kelly” and that the documents on exhibit include “the contract signed by Jackie Robinson with the Montreal baseball team.” Id.
Under Fed.R.Evid. 803(16), a newspaper article published before 1998 is admissible as an exception to the rule against hearsay. See, e.g., In re Davis New York Venture Fund Fee Litig., 2019 WL 11272913, at *3 n.4 (S.D.N.Y. July 2, 2019) (accepting as evidence a 1993 Wall Street Journal article). Newspaper articles are self-authenticating under Fed.R.Evid. 902(6).
An article published on February 12, 1952, in the Brooklyn Daily Eagle announced that another exhibit at the Brooklyn Hall of Records was “now in progress” and that it displayed a number of documents relating to “the history of the Negro in Brooklyn.” See Hall of Records Exhibit, Brooklyn Daily Eagle (Feb. 12, 1952), annexed to Letter from Richard Schonfeld, filed May 15, 2023 (Docket # 1225) (“1952 Article”). The article describes a document from New York's early history written in Dutch and then states the following:
In the same display case is a uniform player's contract made by the Dodgers with Jackie Robinson. It was Robinson's first pact with the Flock, dated 1947 and listing his salary as $5000.
It was made available to the exhibition by Walter O'Malley, Dodger president. Branch Rickey contributed another Robinson contract, one made in 1946 with the Montreal Royals.Id. The article states that Walter O'Malley was “president” of the Dodgers. The parties agree that at this point Rickey was no longer employed by the Dodgers. See Holders Reply at 2 n.2.
Importantly, the 1952 Article states that the exhibit was “prepared . . . by James A. Kelly, Deputy County Clerk and Borough Historian.” Id. It states that Kelly prepared the exhibit “on behalf of County Clerk Francis J. Sinnott.” Id. As noted, Kelly was also referenced in the 1948 Article as the person arranging the exhibit of the Royals contract.
An article published on February 18, 1974, in the New York Daily News describes the opening of the “James A. Kelly Institute for Local Historical Studies” (the “Institute”), housed at St. Francis College in Brooklyn, and also describes the records the Institute holds. See Keeping Up to Date on the Past, N.Y. Daily News (Feb. 18, 1974), annexed as Exhibit 1 to Letter from Richard Schonfeld, filed Apr. 28, 2023 (Docket # 1211-1) (“1974 Article”). The 1974 Article reads in relevant part:
For the history buff, the James A. Kelly Institute for Local Historical Studies is a treasure trove of four million documents, records, charters, maps and memorabilia of Brooklyn's history.
The institute opened its new home last Friday at St. Francis College, 180 Remsen St., Brooklyn Heights. Books, artifacts, pictures and posters are housed in five basement rooms.Id. The article then describes a number of historical documents including the “bill of sale for Coney Island in 1654.” Id. The following paragraph appears next:
And then, there is Jackie Robinson's original contracts with the Brooklyn Dodgers and the then minor-league Montreal team he played with before coming to Brooklyn.Id. The article recounts that “[a]t its opening, Arthur J. Konop, institute director, welcomed guests from across the city.” Id. The article states:
The institute is named for the first official borough historian, James A. Kelly, who died in 1971 at the age of 86. His wife came to applaud the work of Konop and his staff members, David Oats and Eric Ierardi.
Konop, a former assistant county clerk, worked with Kelly and James F. Waters to assemble and catalogue the material collected over the years.Id. The article contains a photograph of Konop at the “opening-day ceremonies.” Id.
On July 11, 1979, another article appeared in the Daily News reporting on the Institute. It describes a “new brochure” that had been issued by the “James A. Kelly Institute” as a result of “increased funding and an enlarged staff.” See Archives Store Treasure Trove of Brooklyn's Past, N.Y. Daily News, July 11, 1979, annexed as Exhibit 2 to Letter from Richard Schonfeld, filed Apr. 28, 2023 (Docket # 1211-2) (“1979 Article”). The article makes clear that its source is “institute Director Arthur Konop” and displays a picture of Konop holding a copy of the brochure. Id. The article quotes Konop as saying: “[w]e are in the midst of enlarging the institute and becoming more active in letting people know what we do.” Id. Konop referred to the fact that the institute “received some money from various foundations and businesses” and that he hoped that the brochure “will help attract additional money in the future.” Id. The article continues:
The institute, at 180 Remsen St., houses one of the largest collections of source documents, memorabilia and archives on New York's history and, more especially, on Brooklyn's history.
Originally founded in 1956 as the Brooklyn Historical Studies Institute of St. Francis College, its first director was James A. Kelly, the official borough historian from 1944-1971. After Kelly's death the institute was renamed in his honor.
Items in the crowded basement rooms range from the entire collection of Kings County town records dating back 300 years, to collections of personal papers from politicians such as John Rooney and Eugene Keogh, over 7,000 maps and charts of old Brooklyn and a library and files with information on almost every phase of life in Brooklyn.
Konop even has Jackie Robinson's original contract with the Brooklyn Dodgers. ...
“Anything having to do with Brooklyn or with New York in any facet of interest, we probably have information on,” said the director.Id. (emphasis added). The article states that the institute “draws people from all over the world.” Id. It states: “Despite the library's constant use, the institute charges no fees for its services and, until last year, was funded solely by St. Francis College.” Id. It notes that “because of the age of many of the irreplaceable documents and records, the Kelly Institute has embarked on a major microfilming and restoration project and that, Konop said, costs money. Thus the director hopes that the new publicity campaign will attract not only additional users, but also some ongoing support to ensure the upkeep of the vast collection.” Id.
Konop died in 2009. Holders 56.1 Response ¶ 36. Scott Konop testified that upon his father's death, his mother gave him an envelope containing a key to a safe deposit box that housed the Contracts, along with a message from his father: “my kids will know what to do with this.” Id.
At the time she negotiated the sale of the contracts to Gotta Have It, Arthur Konop's wife, Odette Konop, signed a letter that warranted title and stated “My Husband possessed these contracts in a safe deposit box or our home for over forty-five years .... He has cared for them and protected them over half his life to the time of his passing.” Letter from Odette Konop, dated Mar. 2, 2012, annexed as Exhibit 28 to First DeMarco Decl. (Docket # 1120-28). While the admissibility or not of this letter does not affect the outcome of the instant motions, we note that it is unsworn and thus not admissible under Fed.R.Civ.P. 56(c)(4). Also inadmissible hearsay (and also not affecting the outcome of the instant motions) is Scott Konop's testimony regarding what his father “[told him] about the contracts,” which included a claim that the contracts belonged to his father and that he “loaned” them to “the college.” Deposition of Scott Konop, annexed as Exhibit 29 to First DeMarco Decl. (Docket # 1120-29), at 37-38. Scott's mother's or father's statement to Scott that Arthur found the contracts “actually being disposed of' is similarly hearsay Id. at 38-39.
In 2012, Konop's estate sold the Contracts to a company called Gotta Have It Collectibles (“Gotta Have It”) for $750,000. Id. ¶¶ 45-46; JRF Mem at 10. Gotta Have It sold the Contracts to CCI in July 2013 for $2 million. Holders 56.1 Response ¶ 57. CCI later obtained loans from the Holders for $6 million secured by the Contracts. Id. ¶¶ 75-77.
After CCI acquired the Contracts, CCI displayed them to promote a future sale through events at Philadelphia's Constitution Center and New York's Times Square, including displays in 2015. JRF 56.1 Response ¶ 47. In 2017, CCI retained the Goldin auction house to organize a sale of the Contracts. Holders 56.1 Response ¶ 107. As of September 2017, the owner of the auction house “was stating publicly that the Contracts were [Jackie] Robinson's personal copies,” as opposed to the copies belonging to the Dodgers organization. Id. ¶ 108. In February 2018, the auction house put the Contracts up for auction but did not sell them. Id. ¶111.
In April 2018, the Dodgers requested from the auction house “all available information relating to the provenance of the contracts.” Id. ¶ 121. On January 24, 2019, the Dodgers sent a letter to CCI demanding possession of the Contracts and stating that “[t]he property is owned by the Dodgers and is not the property of [CCI].” Id. ¶ 124. In November 2019, the Dodgers assigned to JRF whatever interest they had in the Contracts. See id. ¶ 126.
In September 2019, the Holders filed an intervenor complaint seeking declaratory relief regarding the ownership of the Contracts. See Intervenor Complaint, filed Sept. 10, 2019 (Docket # 92). On May 29, 2020, JRF filed an answer. Answer, filed May 29, 2020 (Docket # 353) (“Ans.”). On April 4, 2022, JRF amended its answer to include a cross-claim against CCI for declaratory relief that it was the true owner of the Contracts. Amended Answer, filed Apr. 4, 2022 (Docket # 1002) (“Am. Ans.”), at 14. On November 9, 2022, both JRF and Holders filed the instant motions for summary judgment as to their claims for declaratory relief.
II. LEGAL STANDARDS
A. Summary Judgment
Rule 56(a) of the Federal Rules of Civil Procedure states that summary judgment shall be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Celotex Corp. v. Catrett, 447 U.S. 317, 323 (1986)); Celotex, 477 U.S. at 322 (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (citations omitted); see also Fed.R.Civ.P. 56(c)(4) (parties shall “set out facts that would be admissible in evidence”).
In determining whether a genuine issue of material fact exists, “[t]he evidence of the nonmovant is to be believed” and the court must draw “all justifiable inferences” in favor of the nonmoving party. Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial,'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (quoting Fed.R.Civ.P. 56(e)), and “may not rely on conclusory allegations or unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). In other words, the nonmovant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Thus, “[a] party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory.” Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008). “Where it is clear that no rational finder of fact ‘could find in favor of the nonmoving party because the evidence to support its case is so slight,' summary judgment should be granted.” FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994)).
“When each side has moved for summary judgment, . . . [courts] are required to assess each motion on its own merits and to view the evidence in the light most favorable to the party opposing the motion, drawing all reasonable inferences in favor of that party.” Wachovia Bank, Nat'l Ass'n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011).
While testimony from experts may be admissible, a court will not accept unsupported testimony or conclusory allegations from such witnesses. See Sec. Exch. Comm'n v. Yorkville Advisors, LLC, 305 F.Supp.3d 486, 504 (S.D.N.Y. 2018) (“expert testimony that rests on merely subjective belief or unsupported speculation is inadmissible”) (citing Atl. Specialty Ins. v. AE Outfitters Retail Co., 970 F.Supp.2d 278, 291 (S.D.N.Y. 2013)).
B. Declaratory Judgment
The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction, . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). Because declaratory judgment claims must present an “actual controversy,” id., “the facts alleged, under all the circumstances, [must] show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” In re Prudential Lines Inc., 158 F.3d 65, 70 (2d Cir. 1998).
The Declaratory Judgment Act is “procedural only,” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950), and the party invoking it must still point to a separate legal right it is seeking to vindicate, see Chevron Corp. v. Naranjo, 667 F.3d 232, 244-45 (2d Cir. 2012) (the Declaratory Judgment Act “does not extend to the declaration of rights that do not exist under law”). Ultimately, the decision to grant declaratory relief turns on “(1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2) whether a judgment would finalize the controversy and offer relief from uncertainty.'” Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir. 2005)) (citation omitted).
III. DISCUSSION
Both the Holders and JRF seek a declaratory judgment as to whether either of them holds any current “right, title, or interest” in the Contracts. The Holders argue that they are entitled to declaratory judgment because JRF has failed to establish ownership. Holders Mem. at 3. JRF seeks a declaratory judgment on the basis that it has a right to the Contracts under the law of replevin. JRF Mem. at 3. The Holders respond that any replevin claim is barred by the relevant statute of limitations and by the doctrine of laches. Holders Opp. at 2, 30, 39. CCI has opposed JRF's motion and adds an argument that JRF is judicially estopped from claiming ownership over the Contracts based on statements made in a bankruptcy proceeding. CCI Opp. at 1-5.
We next address the various issues that these motions raise.
A. Availability of Declaratory Judgment
As noted, the Declaratory Judgment Act states that, with exceptions not relevant here, “any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). The availability of relief is contingent upon a showing “that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” In re Prudential Lines, 158 F.3d at 70. “The disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.” Public Serv. Comm'n of Utah v. Wycoff Co., 344 U.S. 237, 244 (1952). Here, it is evident that JRF, CCI and the Holders have adverse interests. Likewise, the dispute here is more than hypothetical. It is based on concrete allegations of fact, not on mere hypotheticals or contingencies. As such, there is an “actual controversy” eligible for declaratory relief.
A decision to grant declaratory relief must consider “(1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2) whether a judgment would finalize the controversy and offer relief from uncertainty.'” Duane Reade, 411 F.3d at 389. A declaratory judgment in this case would achieve both ends by establishing whether the parties involved have an ownership interest in the Contracts.
The Holders argue that JRF's request for declaratory judgment is infirm because any claim grounded in replevin and seeking a declaration of ownership should have been pleaded as a replevin claim in JRF's cross-claim. See Holders Opp. at 2. We reject this argument inasmuch as “[t]he existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate.” Fed.R.Civ.P. 57. Here, replevin is merely the legal framework through which JRF attempts to establish its entitlement to a declaratory judgment. Courts routinely assess a claim for a declaratory judgment by reference to the substantive law that creates the entitlement to a declaratory judgment. See, e.g., In re Joint Eastern and Southern Dist. Asbestos Litig., 14 F.3d 726, 731 (2d Cir. 1993) (“a court may only enter a declaratory judgment in favor of a party who has a substantive claim of right to such relief'); Now-Casting Economics, Ltd. v. Economic Alchemy, LLC, 2022 WL 4280403, at *8 (S.D.N.Y. Sept. 15, 2022) (addressing declaratory judgment claim for ownership of trademark under the law of trademark); Gibbs-Squires v. Cosby, 2017 WL 5515916, at *3 (E.D. Pa. 2017) (applying the statute of limitations for replevin to declaratory judgment action seeking to resolve rights to property). .
B. Judicial Estoppel
CCI argues that JRF and the Dodgers should be judicially estopped from asserting an ownership interest in the Contracts due to statements made in a prior bankruptcy proceeding. CCI's argument centers on a June 27, 2011, bankruptcy petition filed by the Dodgers. CCI argues that “[t]he Dodgers had a statutory duty in the bankruptcy case to list the [] Contracts before the U.S. Trustee as either a Dodgers[] asset[] or . . . as missing assets that the Dodgers would have a claim for the Trustee to pursue.” CCI Opp. at 2. Thus, CCI argues that because the Contracts were never listed in the bankruptcy proceeding, id. at 1, the Dodgers, and by extension JRF as the transferee of the Dodgers' alleged ownership rights, “are precluded or estopped from claiming an asset that the club did not list,” id. at 3.
Under the doctrine of judicial estoppel, “[w]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)). Judicial estoppel “‘generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.'” Id. (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)). With regard to bankruptcy, the doctrine means that “a creditor who fails to lay claim to an asset in the bankruptcy court only to do so in subsequent litigation must, to prevail, bear the heavy burden of showing a de minimis effect on the bankruptcy proceeding.” Adelphia Recovery Tr. v. Goldman, Sachs & Co., 748 F.3d 110, 120 (2d Cir. 2014). However, “because [judicial estoppel] is primarily concerned with protecting the judicial process, relief is granted only when the risk of inconsistent results with its impact on judicial integrity is certain.” Id. at 116 (citation omitted).
In determining whether a party is judicially estopped from asserting a claim, courts consider the following:
First, a party's later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled .... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel.Id. at 116 (quoting New Hampshire v. Maine, 532 U.S. at 750-51). “Courts decline to apply the doctrine of judicial estoppel . . . where a party's prior action resulted from ‘a good faith mistake or an unintentional error.'” Foster v. City of New York, 2017 WL 11591568, at *41 (S.D.N.Y. Sept. 30, 2017) (quoting Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 n.2 (2d Cir. 1999)). Likewise, “if the statements or positions in question can be reconciled in some way, estoppel does not apply.” Negron v. Weiss, 2006 WL 2792769, at *4 (E.D.N.Y. Sept. 27, 2006) (citing Simon v. Safelite Glass Corp., 128 F.3d 68, 72-73 (2d Cir. 1997)); accord Whitehurst v. 230 Fifth, Inc., 998 F.Supp.2d 233, 247 (S.D.N.Y. 2014).
CCI's argument founders for a number of reasons but most obviously on its inability to show that the Dodgers took a position in the Bankruptcy Court with regard to the Contracts that is “clearly inconsistent” with the position they take now. In this court, the position taken by JRF is that the Dodgers were the rightful owners of the Contracts at the time of the bankruptcy. See JRF Reply at 21-25. CCI points to the schedule of assets and liabilities filed by Dodgers as part of its bankruptcy filing, see In re Los Angeles Dodgers, LLC, No. 11-cv-12010 (Del. Bankr.), asserting that “nothing about Jackie Robinson Contracts was ever mentioned.” CCI Opp. at 1. But the schedule in fact lists “Player Contracts/Assignments,” see Schedule of Assets and Liabilities, Exhibit B5, annexed at *17 to Exhibit 4 to Ardoin Decl. (Docket # 1145-4) (“Schedule B5”), at ¶ 31, and “Player Files,” Id. at ¶ 51. Indeed, it does not appear that any historical player contracts were listed by name in the schedule of personal property, see id. at ¶ 1-G85, although the contracts for then-active players are listed by name in a separate section of the filing, see Schedule of Assets and Liabilities, Exhibit G, annexed at *238 to Exhibit 4 to Ardoin Decl. (Docket # 1145-4). Because the listing of “Player Contracts/Assignments” on its face arguably included the Contracts at issue here, the Dodgers' statement in the Bankruptcy Court can be “reconciled in some way” with its current position, see Whitehurst, 998 F.Supp.2d at 247, and thus judicial estoppel is not warranted.
While JRF argues that there is a distinction between the “New Dodgers” organization that transferred its interest in the Contracts to JRF and the “Old Dodgers” organization, which was the subject of the bankruptcy proceeding, see JRF Reply at 21-22, we need not address this issue because we find that estoppel is not warranted regardless.
Although other contracts in the Schedule are grouped by year, see Schedule B5 at ¶ 47, G55, G56, no range of time accompanies these entries, see id. at ¶ 31, G51.
C. Ownership Interest in the Contracts
Under New York law, “[t]o establish a claim for replevin, the plaintiff must prove two elements: (1) that plaintiff has a possessory right superior to that of the defendant; and (2) that plaintiff is entitled to the immediate possession of that property.” Int'l Bus. Machines Corp. v. BGC Partners, Inc., 2013 WL 1775367, at *9 (S.D.N.Y. Apr. 25, 2013) (“IBM”) (citing Jamison Bus. Sys., Inc. v. Unique Software Support Corp., 2005 WL 1262095, at *14 (E.D.N.Y. May 26, 2005); accord Batsidis v. Batsidis, 9 A.D.3d 342, 343 (2d Dep't 2004); Pivar v. Graduate Sch. of Figurative Art of the N.Y. Acad. of Art, 290 A.D.2d 212, 213 (1st Dep't 2002).
JRF's brief argues that New York law applies to this dispute. See JRF Mem. at 21-22. Neither CCI nor the Holders' opposition briefs address let alone oppose JRF's arguments as to choice of law regarding the elements of replevin. As a result, we deem any opposition to the application of New York law to be waived. See, e.g., Scott v. JPMorgan Chase & Co., 2014 WL 338753, at *2 (S.D.N.Y. Jan. 30, 2014) (“Plaintiff's opposing [memorandum of [l]aw does not respond to this argument, and effectively concedes these arguments by his failure to respond to them.”); accord Barkai v. Mendez, 2022 WL 4357923, at *11 (S.D.N.Y. Sept. 20, 2022).
With regard to the burden of proof, the Second Circuit has recently noted:
New York law contains protections for the true owners of stolen property. Lubell, 77 N.Y.2d at 317-20. One such protection is with respect to the burden of proof, which is borne by the possessor of an allegedly stolen artwork.... [U]nder New York law, the ultimate burden of proof does not rest on the shoulders of the claimant. Lubell, 77 N.Y.2d at 321. Rather, the claimant must only make a “threshold showing” of an “arguable claim” to the [property at issue] before the possessor must carry the rest. Bakalar, 619 F.3d at 147; see also Lubell, 550 N.Y.S.2d at 624 (“We recognize this burden to be an onerous one, but it well serves to give effect to the principle that persons deal with the property in chattels or exercise acts of ownership over them at their peril.” (internal quotation marks and alterations omitted)).Republic of Turkey v. Christie's Inc., 62 F.4th 64, 70-71 (2d Cir. 2023) (emphasis added).
“[I]f the district judge determines that [claimants] have made a threshold showing that they have an arguable claim to the [item at issue], New York law places the burden on . . . the current possessor[] to prove that the [item] was not stolen.” Bakalar v. Vavra, 619 F.3d 136, 147 (2d Cir. 2010); accord id. at 142 (New York law requires the possessor to prove “that the [item at issue] was not stolen.”) (citing Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 321 (Ct. App. 1991) (“Lubell II”)).
1. Original Ownership of the Contracts
As to the first element of replevin, requiring that JRF make a “threshold showing” of an “arguable claim” to the Contracts, the Holders contend that material facts are in dispute regarding the question of “whether or not the Contracts . . . ever belonged to the Los Angeles Dodgers.” See Holders Mem. at 1. CCI similarly contends that JRF is not entitled to summary judgment on this issue. CCI Opp. at 10. JRF contends that it is entitled to summary judgment on this point. JRF Mem. at 24-27.
JRF argues that because CCI failed to file its own responsive statement under Local Rule 56.1 and instead “adopted” the Holders' response, CCI should be deemed to have admitted the facts proposed by JRF. JRF Reply at 6. In keeping with Fed.R.Civ.P. 1's admonition to secure the “just, speedy, and inexpensive determination of every action and proceeding,” we see a great efficiency in permitting one party to adopt in writing another party's response to a Rule 56.1 statement rather than cluttering the record by having the party file a response identical to one already in the record.
Before addressing the evidence that JRF has marshaled in support of its claim that Dodgers were the original owners of the Contracts, we note that the parties agree that the Contracts at issue are UPCs, meaning that they followed a standard form for baseball contracts at the time. See Holders 56.1 Response ¶ 12. The parties similarly agree that the Dodgers contract was signed by Jackie Robinson, Branch Rickey, and League President Ford Frick, id. ¶ 9, while the Royals contract was signed by Jackie Robinson and Hector Racine, id. ¶ 7. The Royals contract has a stamp above Robinson's signature (on the final page) indicating that Robinson “acknowledge[s] receipt of duplicate of executed contract” and the contract lacks a signature from the League President. See Exhibit A.
A critical issue on the question of ownership relates to whether the Contracts purchased by CCI are the Dodgers' copy (that is, the “club copy”) of the signed contracts or Jackie Robinson's personal copy. JRF's contention that these are the Dodgers organization's copy is supported by an expert report from G. Edward White, which details that UPCs ordinarily were issued in duplicate, with one copy for the player and one copy for the club. See Expert Report of G. Edward White, annexed as Exhibit 2 to First Spitzer Decl. (Docket # 1124-2) (“White Report”), at ¶ 40. White states that the major leagues had a “longstanding and ubiquitous” practice of sending the club copy to the League President for approval, at which time the club copy would be stamped with the League President's signature. Id. ¶¶ 41-42. White states that “[p]layers did not receive original signed versions of contracts once they were approved by the League President.” Id. ¶ 43. Thus, White concludes that “the contract signing process in the reserve clause era of Major League Baseball resulted in two copies of player contracts - one without the signature of a League President, which belonged to the player, and one with the League President signature, which belonged to the club.” Id. ¶ 45. White provides examples of UPCs that follow this pattern, with personal copies signed only by the player and club, while club copies are signed by the League President as well. See id. ¶ 53 (listing contracts obtained from personal estates of eight players, none of which bore the President's signature); id. ¶¶ 55-57 (listing contracts obtained from teams or team officials for two players, which bear the President's signature). Because the Dodgers contract bears the league president's signature, it is the club copy according to White. Id. ¶ 63.
As to the Royals contract, JRF presents White's opinion that “the practice of having minor League Presidents ‘approve' contracts between players and clubs in their leagues was not assiduously followed.” White Report ¶ 67. White avers that “none of the Montreal Royals contracts from that time period, which are currently in the Dodgers' archives, bear the signatures of the president of the International League or of the National Association of Professional Baseball Leagues.” Id. White concludes that “the absence of [the League President's] signature[] does not mean that the contract was Robinson's personal copy.” Id. ¶ 64. Additionally, the Royals contract contains a stamp above Robinson's signature acknowledging on the final page that he had received a “duplicate” of the contract. White cites this inscription as “another basis for the conclusion that the [Royals Contract] . . . was not Robinson's personal copy,” noting that examples of other team copies of minor league contracts bear this language. White Report ¶ 70. The Holders present literally no evidence that suggests a player copy of the minor league UPC would have borne this notation. In the end, the Holders do not present evidence that contradicts JRF's expert testimony that there were two copies of minor league contracts, and that the absence of the League President's signature was not dispositive as to the provenance of a minor league contract.
That the contracts at issue in this case are the club copies is supported by the 1952 Article, which describes a “uniform player's contract made by the Dodgers with Jackie Robinson . . . dated 1947” that was “made available to the exhibition by Walter O'Malley, Dodger president.” It also says that the Royals contract was contributed by Rickey, the Dodgers' former president. Given the connection between Kelly, who received and had possession of these contracts, and Konop, whose estate ultimately sold them to the entity that sold them to CCI, the only reasonable inference from the evidence is that the Contracts purchased by CCI and now before the Court are the same contracts that were made available at the 1952 exhibition.
The Holders have offered essentially no evidence that would allow a jury to find the two contracts were not originally owned by the Dodgers. Indeed, the Holders own expert, Troy Kinunen, backs up White on the significance of the presence of League President Ford Frick's signature. Kinunen stated that he had reviewed “a complete collection of Braves contracts and a partial collection of Brewers contracts” available on the collectors market, and noted that every example identified as a club copy of a UPC bore the signature of the then-League President. See Deposition of Troy Kinunen, annexed as Exhibit 31 to Third DeMarco Decl. (Docket # 1140-31) (“Kinunen Dep.”), at 112:13-20, 114:20-115:2, 115:8-19. Kinunen agreed that these contracts were “similar to what is found on Jackie Robinson's 1947 contract . . . [w]ith respect to the signing of the league president.” Id. at 115:20-116:3.
CCI presents no evidence on this issue and in fact makes no argument as to whether the Dodgers originally owned the Contracts beyond the passing assertion that the Dodgers lack a record of original ownership. See CCI Opp. at 8-9.
The Holders provide testimony from their expert Gary Gillette, who stated that although the odds were “vanishingly small” that the Dodgers' copy of the 1947 Contract lacked Ford Frick's signature, “[t]he chances that the Robinson original had Frick's signature are significant” because the Robinson signing “was an exceptional historical event.” Deposition of Gary Gillette, annexed as Exhibit 32 to Third DeMarco Decl. (Docket # 1140-32) (“Gillette Dep.”), at 98:21-99:3. The problem with this testimony is that Gillette cited no basis for his opinion that there was a “significant” chance that Robinson's own copy of the Dodgers contract contained Frick's signature. See id. John Reznikoff, an expert also retained by the Holders, see Holders Mem. at 12, testified that he had found “no indication” that the historical significance of the signing “might have changed the way things [were] done” in relation to the Dodgers contract. See Deposition of John Reznikoff, annexed as Exhibit 77 to First Spitzer Decl. (Docket # 112477) (“Second Reznikoff Dep. Excerpt”), at 148:12-17. The Holders do not provide a single example of a player copy of a UPC featuring the League President's signature. In light of this evidence, no reasonable jury could accept Gillette's speculation that Robinson's own copy might have contained Frick's signature.
Positing that there may be a third copy of the Dodgers contract, the Holders cite a 2019 email exchange between Dodgers personnel and Paul Misfud, a representative of Major League Baseball (“MLB”). See Email from Paul Misfud to Sam Fernandez, dated Jan. 26, 2019, annexed as Exhibit 44 to Third DeMarco Decl. (Docket # 1140-44) (“Misfud Email”). In this exchange, the Dodgers asked whether “MLB would still have its copy of Jackie Robinson's 1 947 UPC” and whether it would be correct to say “that in the 40s, three original UPCs were signed: one that was given to the player, one that was kept by the club, and one that was filed with the Commissioner's Office.” Id. Misfud responded by stating that MLB “[does]n't have original old UPCs of anyone pre-1980” due to a storage mishap. See id. Again, this provides no evidence contradicting the evidence of ownership as it simply does not address whether there was any real possibility that there was a third contract that was retained by MLB. Mifsud's response provides no competent evidence on this issue. The same is true for the testimony of the Dodgers' 30(b)(6) representative, Mark Langill, who merely testified that to his knowledge, contemporaneous articles and photographs did not identify how many copies of the 1947 contract Robinson signed. Deposition of Mark Langill, annexed as Exhibit 21 to Third DeMarco Decl. (Docket # 1140-21) (“Langill Dep.”), at 51:2-8.
Of course, here we are not presented with Contracts completely devoid of evidence as to their provenance. The series of articles beginning in 1948 reflect that the Contracts acquired by CCI were originally in the possession of Kelly, who obtained possession of them from a Dodgers president and a former Dodgers president, that Kelly's Institute had possession of the Contracts in the 1970's, that Konop succeeded Kelly in his role as head of Kelly's Institute, and that Konop had possession of the Contracts at the time of this death. These undisputed facts provide further support that the Contracts at issue in this case originally emanated from the Dodgers' organization and thus were in fact owned by the Dodgers. No reasonable jury could find otherwise.
In sum, we find that there is no genuine dispute of material fact as to the question of whether the Contracts were originally owned by the Dodgers. Thus, the Dodgers have more than satisfied their burden of making a “threshold showing” of an “arguable claim” to the Contracts. Republic of Turkey, 62 F.4th at 70.
2. Proof that the Contracts Were Not Stolen
On the question of whether a jury could find that the Holders have met their burden of showing that the Contracts were “not stolen,” neither party is entitled to summary judgment.
We begin by addressing the evidence regarding the whereabouts of the Contracts beginning in 1948. As noted, the 1948 Article shows that the Royals Contract was in the possession of Kelly for purposes of exhibiting the contract at the Brooklyn Hall of Records. The 1952 Article shows that O'Malley, who was president of the Dodgers, provided the Dodgers contract to the 1952 exhibition organized by Kelly. The 1952 Article reflects that, at the same time, Rickey, the former president of the Dodgers, loaned the Royals contract to the same exhibition run by Kelly. A jury could reasonably infer that in light of the circumstances of the event and the publicity as manifested in the 1952 Article, O'Malley was aware of Rickey's action in 1952 given that both contracts were loaned to the same exhibition. Furthermore, in in light of the 1974 Article describing the James A. Kelly Institute and its possession of both contracts, and in light of the fact that the Dodgers organization never filed any action seeking return of the Contracts (even though O'Malley obviously knew who they had been loaned to), a jury could also find that the Contracts were in lawful possession of the James A. Kelly Institute as of 1974. This finding is further supported by the fact that the Institute plainly was seeking publicity for the purposes of educating the public and fundraising as reflected in the 1974 and 1979 articles, and as part of that effort displayed the Contracts. These actions are completely contrary to the expected actions of a party who had stolen the Contracts.
While it is not in the record, O'Malley's obituary indicates that he was chairman of the Los Angeles Dodgers until his death in 1979. See Walter F. O'Malley, Leader of Dodgers' Move to Los Angeles, Dies at 75, N.Y. Times (Aug. 10, 1979) (available at: https://www.nytimes.com/1979/08/10/archives/walter-f-omalley-leader-of-dodgers-move-to-los-angeles-dies-at-75.html) (“O'Malley Obituary”).
Putting these facts together, a jury might reasonably infer that the Dodgers organization, through its president, O'Malley, either decided to transfer ownership of the Contracts to Kelly or the James A. Kelly Institute or simply abandoned them. A donation might be expected given that Kelly was Brooklyn “Borough Historian” beginning from 1944 through 1971, see 1979 Article, and the Dodgers might have seen value in having the documents rest in what appeared to be a public archive. Given that these same contracts were in the James A. Kelly Institute's possession in 1974, and that there is no indication from the 1974 Article that they were merely on loan at that time, a jury also might reasonably conclude that O'Malley and Rickey had abandoned the Contracts, and thus that they were not stolen.
We address New York law on abandonment in section III.F. below
Because we are called upon in this motion to determine only whether JRF has a claim to the Contracts superior to that of CCI or the Holders, we address whether CCI and the Holders have marshaled evidence showing that the contracts were not stolen from the Dodgers - not whether the Contracts were stolen from any other party. See IBM, 2013 WL 1775367, at *9 (law of replevin seeks to determine whether the “plaintiff has a possessory right superior to that of the defendant”). As a result, we do not consider whether the Contracts were stolen by Konop from the James A. Kelly Institute. See also fn. 14 below.
Such an inference is supported to some degree by evidence that teams did not treat Major League player contracts as items of value that needed to be safeguarded, though it is certainly arguable that the team might have treated the Jackie Robinson contracts differently from any other player contracts. Thus, the Holders expert, Kinunen, testified that the Milwaukee teams discarded player contracts for the period 1953-1965 and 1970-1980, Kinunen Dep. at 112:7114:5, and Gillette testified that Pittsburgh Pirates contracts were sold to collectors by then- General Manager Joe Brown, Gillette Dep. at 158:17-159:7, 160:4-161:11. The Holders also point to the testimony of JRF expert, White, who noted that a 1946 St. Louis Cardinals UPC signed by Ford Frick and sold at auction had been “rescued” from the club offices by an employee. White Report ¶ 56; Deposition of G. Edward White, annexed as Exhibit 33 to Third DeMarco Decl. (Docket # 1140-33), at 52:13-54:7.
The Holders' position is also supported by the fact that Dodgers representative Mark Langill testified that the Dodgers had not identified any 1947 Dodgers contracts in their archives. See Langill Dep. at 66:4-67:15. In a similar vein, the Holders' expert, Reznikoff, reviewed the Dodgers' archive index and found that it contained no contracts for players on the roster between 1945 and 1947. See Deposition of John Reznikoff, annexed as Exhibit 1 to First DeMarco Decl. (Docket # 1120-1) (“First Reznikoff Dep. Excerpt”), at 113:7-114:6. While there is evidence that the Dodgers have contracts signed by players with minor league clubs from the 1940s, including some Royals contracts, White Report ¶¶ 35, 48, 66-69, there is no evidence of any systematic policy on the part of the Dodgers of maintaining player contracts, and thus the Holders' evidence supports an inference that the Dodgers might have abandoned or donated the Robinson contracts.
In sum, the Holders have offered evidence that would allow a reasonable jury to find that the Contracts were not stolen from the Dodgers. On the other hand, a jury would not be required to so find. It could instead draw other inferences - for example, that the James A. Kelly Institute was merely loaned the Contracts and improperly failed to return them to the Dodgers - and thus conclude that that the Holders had not met their burden of showing by a preponderance of the evidence that the Contracts were not stolen. Accordingly, the “weighing of the evidence (including the competing reasonable inferences that could be drawn from such evidence) must be resolved by a jury in this case.” Radwan v. Manuel, 55 F.4th 101, 133 (2d Cir. 2022).
D. Statute of Limitations
The Holders argue that JRF's claim is barred by the applicable statute of limitations. Holders Opp. at 2. This argument relies on the assertion that “there were numerous instances of the Contracts being publicly displayed and highlighted in the media for years without claim from the Dodgers,” and “the Dodgers were shown and offered the Contracts in 2012 and thereafter, and yet did nothing until January 2019 to assert alleged ownership over those Contracts.” Id. at 39.
New York law applies a three-year statute of limitations for actions to recover stolen chattel. See N.Y.C.P.L.R. 214(3). The cause of action for replevin accrues at two different times depending on whether the claim is against a thief or against a good-faith purchaser. See Lubell II, 77 N.Y.2d at 318 (“New York case law treats thieves and good-faith purchasers differently”); accord Republic of Turkey v. Christie's Inc., 425 F.Supp.3d 204, 211 (S.D.N.Y. 2019). Because there is no evidence that CCI was anything other than a good faith purchaser of the Contracts, see Holders 56.1 Response ¶¶ 45, 57, we look only to the standard for such purchasers. “[A] cause of action for replevin against the good-faith purchaser of a stolen chattel accrues when the true owner makes demand for return of the chattel and the person in possession of the chattel refuses to return it.” Lubell II, 77 N.Y.2d at 317-18 (citing Goodwin v. Wertheimer, 99 N.Y. 149, 153 (Ct. App. 1885)); Cohen v. Keizer, Inc., 246 A.D. 277, 278 (1st Dep't 1936)); accord Abbott Lab'ys v. Feinberg, 2023 WL 19076, at *3 (2d Cir. Jan. 3, 2023) (“Abbott II”). “Until demand is made and refused, possession of the stolen property by the good-faith purchaser for value is not considered wrongful.” Id. Thus, the three-year statute of limitations applicable to JRF's replevin claim ran from any demand and refusal - not from the time at which the Contracts left the Dodgers' possession.
The Holders suggest that the California statute of limitations may apply to the replevin claim if JRF contends the Contracts were stolen after 1958, when the Dodgers moved to Los Angeles. See Holders Opp. at 39. Inasmuch as we do not view JRF as making such a contention, we apply the law of New York to this issue as well as all others. See footnote 7 above.
Here, the Dodgers first made a demand on CCI on January 24, 2019, when they sent a letter to CCI's counsel asserting that the Contracts “[are] owned by the Dodgers and [are] not the property of [CCI].” See Holders 56.1 Response ¶ 124. We will assume, inasmuch as it benefits the Holders, that a demand on CCI satisfied the “demand” portion of the “demand-and-refusal” rule. But in the portion of the Holders' opposition memorandum addressing the statute of limitations, the Holders do not even assert on what date the refusal occurred, see Holders Opp. at 39-40, making it impossible for the Court to understand the Holders' statute of limitations argument. In the absence of any argument or evidence of when the refusal occurred, we cannot say when the limitations period began to run. Thus, we reject the argument that JRF's filing of its cross-claim for a declaratory judgment on April 4, 2022 was untimely. See Am. Ans.
E. Laches
The Holders also argue that JRF's replevin claim is barred by the equitable doctrine of laches. Holders Opp. at 30. In seeking summary judgment in its favor, JRF argues that the evidence would not support the application of a laches defense. JRF Reply at 14-19.
“Laches is an equitable defense available to a defendant who can show that the plaintiff has inexcusably slept on its rights so as to make a decree against the defendant unfair, and that the defendant has been prejudiced by the plaintiff's unreasonable delay in bringing the action.” Zuckerman v. Metro. Museum of Art, 928 F.3d 186, 190 (2d Cir. 2019) (citation omitted). “The doctrine of laches ‘protects defendants against unreasonable, prejudicial delay in commencing suit.'” Id. at 193 (quoting SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 580 U.S. 328, 333 (2017)). “The party asserting the defense of laches has the burden” of showing that the “delay was unreasonable and that it was prejudicial.” Howard Univ. v. Borders, 2022 WL 11817721, at *9 (S.D.N.Y. Oct. 20, 2022) (citing Abbott Lab'ys. v. Feinberg, 506 F.Supp.3d 185, 198 (S.D.N.Y. 2020) (“Abbott I”)). “To establish the first element, the party asserting laches . . . must prove that [plaintiff] was ‘aware of [its] claim' and ‘inexcusably delayed in taking action.'” Id. (quoting Bakalar v. Vavra, 819 F.Supp.2d 293, 303 (S.D.N.Y. 2011)). “The knowledge prong of the laches analysis is intertwined with the scope of required diligence, as any potential claimant must act reasonably on the basis of any information it possesses or should possess.” Id. (citation omitted). Thus, the plaintiff's delay is measured from when it either knew or “should have known” of the injury. Republic of Turkey, 62 F.4th at 71. “Where the evidence does not support that the true owner knew or should have known of the information necessary to bring its claim at that earlier point in time, it cannot be said that the true owner unreasonably delayed [its] lawsuit.” Howard Univ., 2022 WL 11817721, at *9 (collecting cases).
As to the prejudice element, “prejudice . . . ‘may be demonstrated by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay[.]'” Abbott I, 506 F.Supp.3d at 197 (quoting Reif v. Nagy, 175 A.D.3d 107, 130 (1st Dep't 2019)). “The mere lapse of time, without a showing of prejudice, is insufficient to sustain a claim of laches.'” Reif, 175 A.D.3d at 130. “Where the due diligence of the original owner of [an item] raises questions of fact, the issue of whether its lack of diligence operated to the prejudice of the party currently in possession of the [item] is appropriately resolved at trial.” In re Peters, 34 A.D.3d 29, 38 (1st Dep't 2006) (citing Lubell II, 77 N.Y.2d at 321); accord Malanga v. Chamberlain, 71 A.D.3d 644, 646 (2d Dep't 2010).
The party asserting the defense of laches has the burden on both elements - that delay was unreasonable and that it was prejudicial. See Abbott I, 506 F.Supp.3d at, 198.
1. Delay
We first consider whether the Dodgers and JRF unreasonably delayed bringing their claim. The issue before us is whether the undisputed evidence would require a jury to find one way or the other on the issue of whether the Dodgers knew or should have known that they had a claim to the Contracts and whether they acted reasonably in light of that knowledge.
As already described above, the 1948, 1952 and 1974 Articles would allow a jury to find that that O'Malley, who was president of the Dodgers, loaned the Contracts to Kelly in 1948 and 1952; that he was aware that Branch Rickey had the Royals Contract and had similarly loaned it; and that by 1974 at the latest, the Institute founded by Kelly possessed both the Contracts and did not view them as being on loan but rather as belonging to the Institute.
From this evidence, a jury might reasonably infer that O'Malley was aware in 1952 that the Contracts were in possession of Kelly, identified in the article as the Brooklyn “Borough Historian,” for at least some period time beginning in 1952. Given O'Malley's position as president of the Dodgers, a jury could conclude that the Dodgers had actual knowledge of the location of the Contracts starting in 1952 and continuing for an indefinite period - for at least as long as O'Malley held a high position with the Dodgers.
If O'Malley viewed the Contracts as being merely on a temporary loan to the Borough Historian, he (and thus the Dodgers) was certainly on notice that the Contracts should be returned to the Dodgers' possession. If by contrast the Contracts were donated to the Borough of Brooklyn or the Brooklyn Historian on a permanent basis, O'Malley (and thus the Dodgers) would certainly have been aware of that as well. Given that these same contracts were in the James A. Kelly Institute's possession in 1974, and that there is no indication from the 1974 article that they were merely on loan at that time, a jury might reasonably conclude that O'Malley and thus the Dodgers “should have been aware” that Kelly or his Institute had possession of the Contracts beginning in 1952 and for some indefinite period afterwards.
Even if a jury inferred that O'Malley simply failed to do anything to get the Contracts back from Kelly in the years following 1952, and even if the Dodgers retained title to the Contracts, a jury could still find the Dodgers “should have known” during the period following the 1952 exhibition that another party was improperly retaining possession over the Contracts, and thus that the Dodgers should have acted to regain possession through a replevin action. In other words, the jury might find that the Dodgers did not “act reasonably on the basis,” Howard Univ., 2022 WL 11817721, at *9, of the information that the Dodgers either did possess or should have possessed as a result of O'Malley's knowledge of the whereabouts of the Contracts in that period. While a jury would not be required to draw these inferences, they are reasonable inferences nonetheless and thus preclude summary judgment in favor of the Dodgers on this issue.
The Holders are not entitled to summary judgment on the laches defense either, however, because a reasonable jury could choose to find against the Holders on this issue. First, a jury could draw different inferences from the various news articles and conclude that the Holders had not met their burden of showing that O'Malley should have known that the Contracts were being improperly held by Kelly. Second, case law makes clear that when laches is invoked, “defendant's vigilance is as much in issue as plaintiff's diligence.... The reasonableness of both parties must be considered and weighed.” Solomon Guggenheim Found. v. Lubell, 153 A.D.2d 143, 152 (1st Dep't 1990) (“Lubell I”). Here, there is no evidence that the CCI and the Holders made a reasonable effort to determine the provenance (as opposed to the authenticity) of the Contracts. See, e.g., Deposition of Peter Siegel, annexed as Exhibit 27 to First Spitzer Decl. (Docket # 1124-27), at 101:24-102:24 (owner of Gotta Have It testifies that he did “no independent investigation” but merely “asked around” and determined that “nobody knew about Konop”); Deposition of Collector's Coffee, Inc. Representative Joseph Michael Maliak, annexed as Exhibit 41 to First Spitzer Decl. (Docket # 1124-41), at 393:11-14; 394:9-25; 399:6-401:22 (“Q: And to your knowledge, there was no further investigation into whether or not [Odette Konop's warranty of title] is a true statement, correct? A: Not to my knowledge.”); Deposition of Darren Sivertsen, annexed as Exhibit 51 to First Spitzer Decl. (Docket # 1124-51), at 59:2-15; 63:4-18; 70:4-73:5 (“Q: Did Mr. Kontilai provide you with any proof as to how this family in Brooklyn obtained the [C]ontracts? A: No.”). Putting aside the equivocal evidence available as to how and why the Contracts came to be in the collection of the Institute, the Holders and CCI were certainly on notice that there were serious questions as to how title could have lawfully passed from the James A. Kelly Institute for Local Historical Studies (where the Contracts were maintained based on the descriptions provided in the 1974 article) to Arthur Konop personally. These questions as to ownership were easily discoverable through the most basic efforts. Even a Google search of “Arthur Konop Jackie Robinson” turns up the 1979 Daily News article showing that the Contracts were in the collection of the “James A. Kelly Institute” at St. Francis College, and thus likely not Arthur Konop's personal property. See Search for “Arthur Konop Jackie Robinson,” http://www.google.com (last accessed May 11, 2023). Any reasonable purchaser of the Contracts from Konop (or from someone who had purchased the Contracts from Konop) would investigate why Konop was vested with title to the Contracts and not the James A. Kelly Institute or St. Francis College.
The record is not at all developed on the interest of the James A. Kelly Institute in the Contracts even though the 1975 Article identifies individuals who worked with Konop at the Institute and there may well be individuals at St. Francis College who have knowledge about the Institute's collection and any documents governing ownership or disposition of items in the Institute's collection. The absence of such evidence is not surprising given that no party before the Court has any incentive to investigate the possibility that the Contracts are in fact the property of the James A. Kelly Institute or its successor. For what it is worth, it appears that in 1988, St. Francis College closed the Institute and donated the Institute's collection to various New York City governmental entities, including Brooklyn College, which is part of the City University of New York. See Brooklyn College Local History Collection, Brooklyn College (last accessed May 11, 2023), https://archives.brooklyn.cuny.edu/repositories/2/resources/39.
In light of the above, it is not necessary to address in any detail the question of whether the Dodgers knew or should have known of the Contracts' possession by Konop's estate, Gotta Have It, or CCI beginning in 2012 when Scott Konop first sought to sell the Contracts and they were purportedly shown by Gotta Have It to a Dodgers representative, or in the period 20152019, when Gotta Have It and CCI organized public events around the sale of the Contracts. See Holders Opp. at 15-23. Nonetheless, we note that while the Holders marshal evidence to support their conclusion that Dodgers knew of the Contracts existence as a result of this publicity, see id., in fact the Holders' evidence shows at best only that the Dodgers should have known that some version of the Contracts were being offered for sale. The Holders have provided no evidence that the Dodgers' should have known it was the club copies being marketed. Indeed, in 2017, prior to the first auction attempt, Ken Goldin of the auction house represented the Contracts as Robinson's personal copies. Holders 56.1 Response ¶ 108. None of Goldin's communications with the Dodgers suggest that the Dodgers believed otherwise. See Email from Pierce Rothschild to Ken Goldin, dated Feb. 26, 2018, annexed as Exhibit 53 to Third DeMarco Decl. (Docket # 1140-53).
Neither the Holders nor CCI meaningfully engage with the contention that, although the Dodgers were aware that CCI owned Jackie Robinson contracts, they were not aware until much later that the Contracts bore Ford Frick's signature, which distinguished the Contracts as being the Dodgers' copies rather than Jackie Robinson's and thus that the Dodgers were unaware that the Contracts might be club copies to which they could lay claim. See JRF Reply at 17-18. None of the evidence provided by the Holders and CCI indicates whether this signature was visible or described at any time between the 2012 sale and the time at which Dodgers claim they became aware of its existence. The evidence indicates only that at some time afterward, the Dodgers began questioning the Contracts' provenance, resulting in the eventual demand for the return of the Contracts. See Holders 56.1 Response ¶ 124.
We conclude by noting that JRF's dismissal of the import of the 1948, 1952, 1974 and 1979 articles is premised on the notion that the Dodgers organization should not be expected to have knowledge of articles in “local” newspapers. JRF Mem. at 33. First, the 1952 Article was not in a “local” paper given that it appeared in a popular Brooklyn daily and the Dodgers were located in Brooklyn at the time. This is beside the point, however. The import of the 1952 Article is that it makes clear that the Dodgers' president (O'Malley) put the Dodgers contract in the hands of the Institute. And the importance of the 1974 and 1979 articles is not that the Dodgers should have been expected to have read them, but that they provide a link between the 1948 and 1952 possession of the Contracts by Kelly and the continued possession of the Contracts by Kelly's organization, the Institute, and ultimately Konop.
Additionally, given that the Dodgers were still in Brooklyn and the article chronicled an act of generosity of their president, it is certainly a reasonable inference that it was read by officials of the Dodgers and thus that they knew about Rickey's donation of the Royals' contract.
2. Prejudice
JRF does not address the issue of whether there was prejudice if a jury were to find that that the Dodgers unreasonably delayed taking action having known of their entitlement to the Contracts from 1952 onwards. And the prejudice to CCI and the Holders is obvious given that the critical witnesses to the purported transfer of title of the Contracts from the Dodgers to the Institute (at the latest, as of 1974) all have died in the decades since, including Arthur Konop, who died in 2009, see JRF 56.1 Response ¶ 44; Kelly, who died in 1971, see 1974 Article; Rickey, who died in 1965, see Branch Rickey, 83, Dies in Missouri, United Press Int'l (Dec. 10, 1965), https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/ bday/1220.html; and O'Malley, who died in 1979, see O'Malley Obituary. The death of significant witnesses is sufficient to show prejudice for the purpose of applying laches. See Republic of Turkey, 62 F.4th at 73 (“A defendant has been prejudiced by a delay when the assertion of a claim available some time ago would be inequitable in light of the delay in bringing that claim. The deaths of . . . key witnesses . . . form[] just such an inequity.”) (citation omitted); see also Zuckerman, 928 F.3d at 194-95 (finding prejudice where the “time interval . . . resulted in deceased witnesses, faded memories, . . . and hearsay testimony of questionable value, as well as the likely disappearance of documentary evidence”) (citation omitted).
Although the parties provide no evidence regarding the years of death of O'Malley and Rickey, we take judicial notice of the years of death for both men based on published obituaries, as is permitted by case law. See Shaut v. Sec'y of Dep't of Health & Hum. Servs., 2014 WL 7358648, at *1 n.2 (N.D.N.Y. Dec. 22, 2014) (citing Magnoni v. Smith & Laquericia, LLP, 701 F.Supp.2d 497, 501 (S.D.N.Y. 2010), affd 483 Fed.Appx. 613 (2d Cir. 2012)); accord United States v. Thomas, 2022 WL 538540, at *3 (D.N.J. Feb. 23, 2022); Beeman v. TDI Managed Care Servs., Inc., 2016 WL 11637594, at *12 n.6 (C.D. Cal. Nov. 10, 2016).
Because there are disputed issues of fact on the issue of unreasonable delay, neither side is entitled to summary judgment on the laches defense.
F. Abandonment
JRF argues that it is entitled to summary judgment that the Dodgers did not “abandon” the Contracts. See JRF Mem. at 30-34.
Under New York law, “[a]bandonment of property requires a confluence of intention and action by the owner.” Johnson v. Smithsonian, 189 F.3d 180, 187 (2d Cir. 1999); accord Kamat v. Kurtha, 2008 WL 5505880, at *8 (S.D.N.Y. Apr. 14, 2008). Thus, “before possessory rights will be relinquished, the law demands proof both of an owner's intent to abandon the property and of some affirmative act or omission demonstrating that intention.” Hoelzer v. City of Stamford, Conn., 933 F.3d 1131, 1138 (2d Cir. 1991); accord Kamat, 2008 WL 5505880, at *8. “Proof supporting [abandonment] must be direct or affirmative or reasonably beget the exclusive inference of the throwing away.” United States v. Cowan, 396 F.2d 83, 87 (2d Cir. 1968); accord Hoelzer, 933 F.3d at 1138. “The burden of proof rests with the party claiming ownership by default.” Hoelzer, 933 F.3d at 1138.
Summary judgment on this issue should be denied. For the same reasons already discussed at length, a reasonable jury could infer from the evidence in the record that the Dodgers (through their president, O'Malley) knew that Kelly as Borough Historian had possession of the Contracts and consciously allowed the Contracts to remain in Kelly's possession. The “omission” required by case law is reflected in the fact that the Dodgers did not take any action to reclaim possession of the Contracts from Kelly or his Institute. Additionally, the Dodgers have apparently been making efforts recently to see if they have any contracts in their possession from 1947 and have found no such contracts, see Langill Dep. at 66:4-67:21, which suggests that player contracts are just the sort of property that the Dodgers normally do not maintain. Since it cannot be disputed by JRF that the Dodgers at one time had possession of the Contracts (at signing and as reflected in the donations for the exhibition in 1948 and 1952), the absence of any contracts would allow an inference that the Dodgers intentionally abandoned the Contracts in favor of their possession by Kelly and his Institute.
IV. CONCLUSION
For the foregoing reasons, JRF's motion for summary judgment (Docket # 1121) and the Holders motion for summary judgment (Docket # 1117) should be denied. The claims for declaratory judgment should instead proceed to trial.
PROCEDURE FOR FILING 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 have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Marrero. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
SO ORDERED.
EXHIBIT A
Jackie Robinson 1947 Contract with the Brooklyn Dodgers
Jackie Robinson 1945 Contract with the Montreal Royals
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