Banco Popular de PR, et al v. Latin American Music, et al, No. 3:2001cv01142 - Document 583 (D.P.R. 2010)

Court Description: OPINION and ORDER denying 523 Motion to Dismiss. Signed by Judge Gustavo A. Gelpi on 7/15/10. (SAA)

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Banco Popular de PR, et al v. Latin American Music, et al 1 Doc. 583 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 BANCO POPULAR DE PUERTO RICO, INC., 5 Plaintiff, 6 v. 7 CIVIL NO. 01-1142 (GAG) LATIN AMERICAN MUSIC CO., INC., et al., 8 Defendants. 9 10 BANCO POPULAR DE PUERTO RICO, 11 INC., 12 Plaintiff, 13 v. CIVIL NO. 01-1461 (GAG) 14 LATIN AMERICAN MUSIC CO., INC., et 15 al., 16 Defendants. 17 18 MEMORANDUM OPINION AND ORDER 19 On June 24, 2010, the cross-claim defendants LAMCO/ACEMLA ( LAMCO ) moved for 20 21 22 23 24 25 26 27 28 dismissal of the Venegas party s ( GVLI ) claim in the above captioned action (01-1142) against LAMCO for infringement arising out of the granting of retroactive contracts for the performance rights of the song Genesis granted to Banco Popular ( BPPR ) by LAMCO (Docket No. 523). LAMCO moved to dismiss this claim based on issue preclusion as well statute of limitations. After reviewing the pleadings and pertinent law, the court DENIES LAMCO s motion to dismiss this claim. I. Issue Preclusion In its motion, LAMCO cites case law from this court as well as First Circuit case law Dockets.Justia.com 1 Civil No. 01-1142(GAG) 2 affirming the lower court s prior decision. In these prior rulings, the court held and the First Circuit 3 affirmed that GVLI had failed to provide sufficient evidence demonstrating BPPR s infringing 4 performance of the song Genesis and therefore was awarded no damages based on the alleged 5 infringing performance. See Venegas-Hernandez v. PEER, 2004 WL 3686337 (D.P.R. 2004), 6 affirmed in part by Venegas-Hernandez v.Asociacion de Compositores v. Editores de Musica 7 Latinoamericana, 424 F.3d 50 (1st Cir. 2005). 2 8 LAMCO asks this court to apply the preclusive effect of these rulings and dismiss GVLI s 9 present action. However, the parties in the above-captioned case have stipulated to the fact that the 10 song Genesis was performed during the 1993 Banco Popular Christmas Special. (See Docket No. 11 518 at 4.) In the previous ruling, this court dismissed a similar infringement action based on the 12 granting of the retroactive license as there was insufficient evidence of actual performance of the 13 work Genesis. Here, such a fact is not in dispute. Therefore, because the controlling facts of the 14 case have changed, collateral estoppel does not apply to the issue of performance of the work 15 Genesis. See Walsh v. Intern. Longshoremen's Ass'n, AFL-CIO (1st Cir.1980) 630 F.2d 864, 874 16 ( collateral estoppel applies only where the controlling facts are unchanged). As such, the court 17 denies LAMCO s motion to dismiss this claim based on a theory of collateral estoppel.1 18 II. 19 LAMCO avers that the statute of limitations bar that precluded a similar infringement claim 20 against BPPR (See Docket No. 410) should also apply to this claim. However, the court finds this 21 defense inapplicable as the actions by LAMCO relating to BPPR s infringing performances occurred 22 on November 6, 1998, when LAMCO allegedly infringed GVLI s copyright by granting BPPR 23 retroactive performance rights of the song Genesis. As this counterclaim was filed on June 26, 2001, Statute of Limitations 24 25 26 27 28 1 A similar argument was already brought before the court by BPPR attempting to dismiss GVLI s performance claim based on collateral estoppel grounds. (See Docket No. 270). In this previous order, the court ruled that because the issue of performance was not actually litigated and determined by a valid and final judgment the ruling in the case does not have a preclusive effect on this claim. 1 Civil No. 01-1142(GAG) 2 it falls within the three year statute of limitations proscribed by the US Copyright Statute for a claim 3 of copyright infringement. See 17 U.S.C. § 507(b). Therefore, GVLI s infringement claim, with 4 respect to LAMCO s actions is not time barred. 3 5 6 7 SO ORDERED. In San Juan, Puerto Rico this 15th day of July, 2010. 8 s/ Gustavo A. Gelpí 9 GUSTAVO A. GELPI United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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