19-1108 Twelve Sixty LLC v. Viacom Int’l Inc.

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 PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AN D THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY 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 Seco nd Circuit, held at the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, on the 11 th day of December, two thousand nineteen.

PRESENT: D ENNIS J ACOBS , S USAN L. C ARNEY , M ICHAEL H. P ARK , Circuit Judges

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T WELVE S IXTY LLC, A RON M ARDEROSIAN , R OBERT M ARDEROSIAN , Plaintiffs-Appellants
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v. No. 19-1108

V IACOM I NTERNATIONAL I NC ., O N -S ITE P RODUCTIONS , I NC ., Defendants-Appellees

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_____________ _______________ _____________ FOR PLAINTIFFS-APPELLANTS: Michae l G. Marderosian, Marderosian & Cohen PC, Fresno, CA.

FOR DEFENDANTS-APPELLEES: Wook Hwang, Loeb & Loeb LLP, New York, NY.2 Appeal from the judgment of the United States District Court for the Southern District of New York (Buchwald, J. ).

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment ente red on March 27, 2019, is
AFFIRMED

. Plaintiffs-Appellants Twelve Sixty LLC, Aron Marderosian, and Robert Marderosian (together, “Twelve Sixty”) appeal from the ju dgment of the District Court (Buchwald, J. ) granting Defendants-Appellees Viacom Internat ional Inc. and On-Site Productions, Inc.’s (together, “Viacom”) motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). According to the complaint, in 2014, Twelve Sixty si gned a “Loanout Agreement” (the “Agreement”) with Viacom to produce a theme song for the MTV show “Are You the One?” Under the Agreement, in return for wr iting the theme song, Viacom agreed to pay Twelve Sixty $10,000. Ap p’x 21 ¶ 6(a). Twelve Sixty also re tained the right to “receive and
retain” the “writer’s share” of any “public performance in come” (“PPI”) the song might produce. App’x 21 ¶ 6(b). In the United Stat es, PPI payments flow from broadcasters to writers via middleman “performing rights orga nizations” (“PROs”), such as Twelve Sixty’s designated PRO under the Agreem ent, Broadcast Music Inc. (“ BMI”). Twelve Sixty alleged that, in order for it to receive PPI, Viacom—a s broadcaster—must file “cue sheets” with a PRO indicating when the song was broadcast as part of airings of “Are You the One?” Twelve Sixty further alleged that Viacom has fa iled to file cue sheets for the complete set of domestic and foreign broa dcasts of “Are You the One?” and its spinoffs.
Relying on the implied c ovenant of good faith and fair dealing, Twelve Sixty argued
before the District Court that Viacom has a duty under New York common law to submit cue sheets for foreign and domestic broadcasts. See, e.g.
, Dalton v. Educ. Testing Serv. , 87 N.Y.2d 384, 389, 663 N.E.2d 289 (1995) (dis cussing the implied covenant under New York law).3 The District Court dismissed as moot Twelve Sixty’s claims as to domestic broadcasts because, during the litigation, Viacom su bmitted all unfiled cue sheets for domestic
broadcasts. The District Court dismissed Twel ve Sixty’s claims as to foreign broadcasts because the Agreement discusses only domestic PROs and covers only payments from the
domestic PRO BMI. See Murphy v. Am. Home Prod. Corp. , 58 N.Y.2d 293, 30 4, 448 N.E.2d 86, 91 (1983) (explaining that no imp lied covenant of good faith an d fair dealing may be implied if such implied covenant “would be incons istent with other terms of the contractual relationship”). Reasoning that to imply a c ovenant to submit cue sheets for foreign broadcasts to foreign PROs woul d be inconsistent with the text of the Agreement, the District Court determined that Twelve Sixty’ s claim fell short as a matter of law. Twelve Sixty argues on appeal that the Agreement, read in light of the implied covenant of good faith and fair dealing, does, in fact, requi re Viacom to submit cue sheets for foreign broadcasts of the song.

We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6). Elias v. Rolling Stone LLC , 872 F.3d 97, 104 (2d Cir. 2017) (“ We review the grant of a motion to dismiss under Rule 12(b)(6) de novo , construing the complaint li berally, accepting all factual allegations in the complaint as true, and drawin g all reasonable inferences in the plaintiff’s favor.” (internal quotation marks omitted)). Appl ying this standard, we affirm the dismissal of Twelve Sixty’s claims as to foreign broadcast s, substantially for the reasons stated by the District Court in its sound opinion and order.

* * * We have considered all of Twelve Sixty’s remaining arguments and conclude that they are without merit. The District Court’s judgment is AFFIRMED

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