sports hello thank you for taking the time to hear and see us today this case as you've probably understood from the previous filed is about who  performed in a television show called the nutcracker on ice in one thousand nine hundred four and that has been exploited to this today to this day but she's not received any royalties and that's the whole basis of the action is trying to collect on the royalties on appeal we have six issues and i mean just the little bit different order than they are in the brief just because i think the first one disposes of pretty quickly and that's issue number six it's the nine hundred twenty seven sanctions against me and the district court completely disregarded controlling notification that i was withdrawing because of the conflict of interest that the judge created should have allowed an immediate withdrawal and no sanctions but the judge refused to let me to withdraw and forced me to filed a brief issue number one is our attempts at forty one a one dismissals now i attempted over the course of almost two years to voluntarily dismiss this case for times without prejudice without prejudice correct yes why would you agree to do it with prejudiced without prejudice to the california case but so that you could not bring a new suit in new york because they were willing to let you do it without prejudice to california my client california counsel advised that they want except that so i was stuck with without a prejudice in new york that was my only option they didn't believe mean there is the dismissal with prejudice here but you've appealed that so they need to point out it's quite reasonable of them to point out that this action has been adjudicated here agreement for over a year after you realized that there were no once or that there was no written agreement is is that correct but i don't think that's completely correct because there was a traditional admission by miss talbert from n b c i believe on may seventh of two thousand and fourteen where she said that she hadn't been able to find a written agreement but being a lawyer who practices in the entertainment industry i still find it shocking that a big company like n b c could possibly perform a show and not have a written agreement with the star but the finding is that once you learn that there was no written agreement whether that was surprising or not that you continue to assert claims based on a written agreement when you knew there wasn't one know what i'm saying is that's the representation that they made that there was no written agreement custom and practice and indeed in the industry would not indicate that there would be no written agreement your client produced no written agreement itself yet she would have been though neither n b c was able to produce one on your client was unable to produce one but my client was a minor at the time she she had nothing the industry you would have a written agreement it's impossible to say what your written agreement or not as as applied in california i have to agree with you know what they've gone with in california which is the pleading that it's an implied in fact contract do i personally believe there was no written agreement now i think there had to be written agreement probably last it's referenced in two of n b c s contracts that there is a written agreement and so that means that the n b c lawyers what made a mistake there was no written agreement when they referenced that there is a written agreement that on audio visual works participations generally carry on for the term a copyright so you're never quite outside the statute of limitations you're only limited in how far you can go back on that royalty claim depending on which jurisdiction we have an issue also about the copyright ability of your clients actual performance as opposed to the recording of it could you address that whether it's separable from the recording in the right in the recording well believe judge forrest raise that issue that my client's choreography was  discussing also copyright preemption the nature of the claim is such that it seems legitimately preempted by the copyright act but as judge for if we were to grant you leave to a man right now in this action what would you do we would we would file the amended telephone a complaint you would pursue that here in new york is that what you said what do you mean if you said if you grant of us leave to amend yes we would we would file the amended california complaint the second california complaint which is currently being litigated in california no our objective is to dismiss without prejudice and let everything be resolved in california that has been the objectives for almost two years all right you save some time from about all we hear from the inside jurisdiction in this action and mandating that those claims be dismissed second the district court properly denied by those attempts at voluntary dismissal without prejudice both as a matter of law under rule forty one a one and on application of the gano factors under r forty one a two thirds district court's denial of by all two of leave to file a fifth amended complaint in this action was a proper exercise of her discretion because that that relief was not requested claims bring first to preemption under briarpatch in the doctrine of complete preemption the district courts have jurisdiction over state law claims that are preempted by the copyright act because that act both preamps and provides an exclusive federal remedy for state law in turn the three claims asserted in the fourth amended complaint unjust enrichment conversion and accounting do in fact meet the requirements for preemption under section three zero one of the copyright act as to the subject matter requirements all of these claims arise from the nutcracker on ice a motion picture and audio visual work that is clearly of the subject matter of the copyright law as to the general scope requirement and all of vitals claims liability hinges on n b c s alleged use and exploitation of the nutcracker on ice there is no extra element in any of bibles claims that renders those claims sufficiently different from a copyright infringement claim to survive preemption especially under this court's restrictive view of what constitutes an extra element and moving from dismissal to dismissal without prejudice and who forty one a one a plaintiff may only unilaterally dismiss a case by notice until a defendant has served his or her answer in a case and indeed there motion for voluntary dismissal without prejudice was also properly denied under the god of factors i was on notice concededly by no later than may of two thousand and fourteen that there was no written contract at issue in this case that that would whether whether there was a written contract there or she was aware of well i think the council suggests that he still thinks perhaps there is a written agreement but so could you just heard first i think we should take the allegations of the complaint at their word in paragraph three of the complaint by all express the alleges that there was no written performance agreement beyond that any such agreement as referenced in the net cracker agreement which is any appearances by all had already been obtained and so not only does buy you will already allege that they're likely in the industry for this kind of a relationship not a written contract whatever contract states again however by alleges that she was on notice that no later than may twenty fourteen that there was no written contract and instead of seeking voluntary dismissal without prejudice at that time or seeking to amend her complaint as district court sets forth she would again it on a theory of written contract for over a year she gaging written discovery she filed to a second amended complaint and a third amended complaint still alleging that a written contract existed over a year after may twenty fourth team and then of course commenced the california action on an entirely inconsistent theory and refused to stop the orc action dismissed that case with prejudice even after we had n b c he reasonably really three answers to that there are other parties other claims and other times that by or could have brought a claim simply because certain of the claims asserted against and b c universal are preempted by the copyright act that does not mean that all conceivable claims against and be so universal are a production company could work preempted it doesn't mean that there are other parties for whom she could obtain written a recovery and of course most importantly it means that there are better times to seek dismissal without prejudice not only do the vexatious nisson diligence factors weigh against bio here also the stage of the proceedings factor and the duplicate of expensive real it again also way in favor of and b c universal on the stage of the proceedings we've briefed over five or five motions for judgment on the pleadings or dismissal it between california and new york at this time we've engaged in significant discovery and there's been significant third party discovery and circuit presently and we before you run out of time just turn to sanctions or how do you respond to the argument that for two years counsel trying to dismiss the case well dismissal that mr marko if sought was dismissal without prejudice and no later than september of two thousand and fifteen we had offered a very reasonable compromise solution where we would proceed only in california his preferred his obligations to explain to his client the only reason not to do that would be to reassert the claims that are being asserted in california again in new york to preserve that right and that was the motivating factor for his not agreeing to that compromise solution we should not reward that behavior with you know with special treatment or an ability to amend the complaint you know forbearing from sanctions because he had the complete ability at the it might rain again that commitment in california what would its remedy have been had that scenario come to pass there could be jewish and remedies in terms of some sort of a stop all defense if we had a stepped in to assert to the there could have been the stipulation that we would have entered into not to assert that defense could have been worded in such a way as to provide either a separate action as relief or somehow to work that out with the judge in california  it was not a particular mechanical procedure it was the ultimate end goal of proceeding to finale on the merits in california and putting an end to the new york litigation exactly how that would be done whether it would be  dismissal without prejudice but subject to certain conditions that sort of thing we had proceeded that far because that offer was rejected out of hand i'm just about out of time there's other questions thank you very much thank you we're the a couple couple important points here first of all opposing counsel keeps going into a period prior to the new case number being assigned to this action my understanding of the law is under nine hundred twenty seven it can't go back prior to that case number being assigned so everything that he's talking about is irrelevant to determining whether i should have been sanctioned it only starts from the new case number and what happened from the new case number is what's your authority that we should look to case numbers over the substance of the continued course of conduct if the we were in state court  d that's where i i and i submitted the proposed amended complaint to n b c for approval for filing they approved that i file that amended complaint upon filing that amended complaint and b c then sought to remove they removed under the old case number i filed a forty one a one voluntary dismissal which i believe is valid  because of sheldon judge force disagreed with that and b c then had to file under a new case number then they filed an answer i had filed another forty one a one dismissal they never filed a rule eleven motion against me on the complaint that i filed so i wasn't i wasn't given the twenty one day safe harbor and i was trying to dismiss anyway the complaint that was the whole purpose was i want you dismiss with prejudice other than to the california action i'm sorry you know why when you agreed to dismiss with prejudice without prejudice to the california case ok well you say that california counsel advise you not to that that's the reason but an example of what have you any reason to refuse that offer would be to preserve your right to sue again in new york which is what they were trying to avoid well that was not the intent to my again in new york they wanted to case to remain in california but your honor n b c conceded to california law applying in the california action and then subsequently when these motions were heard before