1 17-1071 Bryant v. Broad. Mu sic Inc., et al.



## UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT



# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fo ley Square, in the City of New York, on the 9 th day of May, two thousand eighteen.

PRESENT: JOHN M. WALKER, JR., DENNIS JACOBS, Circuit Judges, KATHERINE B. FORREST, * District Judge.

_____________________________________

Anne Bryant, Plaintiff-Appellant
,

v. 17-1071

Broadcast Music Inc., Hasbro Inc., DBA Starwild Music Inc., DBA Wildstar Music Inc.,

Defendants-Appellees,

John Does, 2-10, Jane Does, 2-10, ABC Corporations, 1-10, Thomas L Griffin, Jr.,

* Judge Katherine B. Forrest, of the United States District Court for the S outhern District of New York, sitting by designation.2 "Tom", William M. Dobishinski, "Bill", Commisioner of Social Security Admnistration,

Defendants.

_____________________________________

FOR PLAINTIFF-APPELLANT: Anne Bryant, pro se, Stonypoint, NY.

FOR BROADCAST MUSIC INC.: James C. Fitzpatrick, Hughes Hubbard & Reed LLP, New York, NY.

FOR HASBRO INC.: Sandra A. Crawshaw-Sparks, Russell T. Gorkin, Evelyn Yue Pang, Proskauer Rose LLP, New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Swain, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED and Appellant’s motion for
reconsideration of the denial of her request for oral argument is DENIED

.

Appellant Anne Bryant, pro se, appeals from the judgment of the District Court for the
Southern District of New York di smissing her various tort and cons piracy claims against Broadcast Music Inc. (“BMI”) and Hasbro. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

Bryant, a composer, has regist ered musical works with BMI since the 1980s, with Hasbro serving as her publisher. Hasbro retained William Dobishinski, a lawyer, to register Bryant’s works with BMI, collect her royalties, and distri bute those royalties to her. Bryant’s 2014 suit alleges that due to a clerical error by BMI in r ecording her Social Securi ty Number (“SSN”), none of her income was properly recorded or credit ed to her account between 1985 and 1992. She further alleges that beginning in 1990, many of he r works were misattributed to other composers, that in 1989 Dobishinski forged a power of attorney form by whic h he withheld a large share of her royalties, and that as a result of the failure to credit her royalties to her SSN, she lost track of
her finances and was unable to uncov er the various frauds until 2013.

Bryant alleges negligence and fraudulent c oncealment by BMI based on its failure to correct her SSN and its misattribution of her work; fraud against Hasbro for the lost royalties from3 1985 to 1992, and conversion based on the misattribut ion of her work; and a conspiracy by BMI
and Hasbro to commit those torts. The district court dismissed her claims as time-barred.

We review de novo the dismissal of a compla int pursuant to Rule 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in plaintiff’s favor. Biro v. Condé

Nast , 807 F.3d 541, 544 (2d Cir. 2015). The complaint must plead “enough fact s to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Although a c ourt must accept as true all the factual allegations in the complaint, that require ment is “inapplicable to legal conclusions.” Iqbal

, 556 U.S. at 678.

“Although the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint.” Ellul v. Congregation of Christian Bros. , 744 F.3d 791, 798 n.12 (2d Cir. 2014). The New York state statute of limitations governs this diversity
action. Stuart v. Am. Cyanamid Co. , 158 F.3d 622, 626 (2d Cir. 1998).

Under New York law, negligence claims are su bject to a three-year statute of limitations.

See N.Y. C.P.L.R. § 214(5). A negligence clai m accrues “when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint,” and has historically been the time of the plaintiff’s injury. Snyder v. Town Insulation, Inc. , 81 N.Y.2d 429, 432-33 (1993); see Syms v. Olin Corp. , 408 F.3d 95, 109 (2d Cir. 2005). It accrues notwithstanding a plaintiff’s ignorance of or failu re to discover the injury. Kronos, Inc. v. AVX Corp. , 81 N.Y.2d 90, 94 (1993) (The date of injury, “rather than . . . discovery of the injury by the plaintiff, is the relevant date for marking accrual.”). Bryant’s complaint alleged that BMI’s negligent record keeping prevented her from collecting her fu ll royalties from 1985 until 1992. Thus, her claim accrued in 1992 and became untimely no later than 1995.

Bryant invokes the continuing wrong doctrine, arguing that sh e continued to be denied royalties for the misattributed works. Under that doctrine, a series of c ontinuing wrongs may toll the period of limitations until the commission of the last wrongful act. Henry v. Bank of Am. , 147 A.D.3d 599, 601 (1st Dep’t 2017) (citing Selkirk v. State , 249 A.D.2d 818, 819 (3d Dep’t 1998)). However, “[t]he doctrine ‘may only be predi cated on continuing unlawful acts and not on the continuing effects of earlier unlawf ul conduct. The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs.’” Id. (quoting Doukas v. Ballard

, No. 9267-11, 2013 WL 2129137 (N.Y. Sup. Ct. May 1, 20 13) (unpublished)). The doctrine is “inapplicable where there is one tortious act complained of sinc e the cause of action accrues in those cases at the time that the wrongful act first injured plaintiff and it does not change as a result of ‘continuing consequential damages.’” Id. (quoting Town of Oyster Bay v. Lizza Indus., Inc.

, 22 N.Y.3d 1024, 1032 (2013)). Bryant’s claim is pr edicated on BMI’s failure to note that her work was misattributed in 1985, a nd does not assert a negligent acts after 1985. Accordingly, the continuing wrong doctrine is inapplicable; the claim became enforceable in 1990 when she was injured; and it expired three years later in 1993.4 The New York statute of limitations for fraud cl aims is six years, or two years from the time the plaintiff discovered or co uld have discovered the fraud. Sargiss v. Magarelli , 12 N.Y.3d 527, 532 (2009). Bryant argues that BMI fraudulentl y concealed the fact that it had been using an incorrect SSN, and that Dobishinski defrau ded her by accepting royalties credited to an incorrect SSN. Her claims thus arose solely out of the use of an incorr ect SSN for her royalties from 1985 until 1992. Bryant argues that the stat ute of limitations was tolled because, even with due diligence, she could not have identified the fraud before 2013. But Bryant also alleges that
she received a letter from BMI explaining that her SSN in its r ecords was incorrect in 1991. She was therefore on notice of the wrong, and able to id entify the alleged tortious conduct, as of that date. In addition, her complaint alleged that sh e was able to determine the withholding of her royalties by examining a tax assessment from 19 92. No reason appears why she was unable to review this document and reach this conclusion until 2013. Accordingly, her fraudulent
concealment and fraud claims based on the SSN e rror are barred by the statute of limitations.

Bryant also asserts a claim of fraudulent concea lment against BMI for its failure to disclose the misattribution of her work. However, her second amended complaint alleges that she stopped receiving certain royalties in 1990. She was thus on notice of this claim at that time. In any event, state court records attached to Bryant’s complaint reveal she was aware of the misattribution
in 2001. The statute of limitations therefore expired well before she commenced this action. Because the underlying fraudulent concealment claims are meritless, Bryant’s conspiracy claims premised on the substantive tort of fraudulent concealment also fail. See Schlotthauer v. Sanders

, 153 A.D.2d 731, 732 (2d Dep’t 1989) (“[C]onspiracy is not an independent tort, and is time barred
when the substantive tort underl ying it is time-barred.”).

Bryant’s conversion claim concerning Dobishi nki’s retention of her royalties and her “copyright as conversion” claim regarding the misa ttribution of her work are also time-barred. Under New York law, the statute of limitations for a claim of conversion is three years. See N.Y. C.P.L.R. § 214(3). The period be gins to run from the time of the tort, rather than from the time of discovery. Vigilant Ins. Co. of Am. v. Housing Auth. of City of El Paso, Tex. , 87 N.Y.2d 36, 44 (1995). Bryant’s conversion claim based on unpaid royalties accrued in 1992 because she alleged no additional tortious conduct by Dobishinsk i after that year. Her conversion claim based
on Dobishinski’s misattribution of her work accr ued in 1990, when she stopped receiving royalties due to the misattribution. As discussed above, the continuing wrong doctrin e is inapplicable in the case of a single torti ous act, even one that produ ces continuing damages. See Henry , 147
A.D.3d at 601. The statute of limitations for Br yant’s conversion claims against Hasbro for misattribution and retention of royalties th erefore expired in 1 993 and 1995, respectively.

Lastly, Bryant’s motion for reconsideration of the denial of oral argument is meritless. We may decline to hear oral ar gument after reviewing the record and the parties’ briefs, and our decision to do so here was appropriate. See Fed. R. App. P. 34(a)(2).5 We have considered Bryant’s remaining argumen ts and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court and DENY Appellant’s motion for
reconsideration of the denial of her request for oral argument.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court