         13-576-cv
         Mitchell v. Faulkner

                                  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 (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 29th day of August, two thousand thirteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                RICHARD C. WESLEY,
 8                SUSAN L. CARNEY,
 9                         Circuit Judges.
10
11
12
13       IAN MITCHELL, GORDON CLARK, and PAT
14       MCGLYNN,
15
16                                     Plaintiffs-Appellants,
17
18                         -v.-                                             No. 13-576-cv
19
20       ERIC FAULKNER, DUNCAN FAURE, ALAN
21       LONGMUIR, DEREK LONGMUIR, LESLIE MCKEOWN,
22       STUART WOOD, AND ARISTA RECORDS, LLC,
23
24
25                                     Defendants-Appellees.
26
27
28
29       FOR APPELLANT:                ERIC M. SCHIFFER, Schiffer & Buus, APC,
30                                     Costa Mesa, CA (William Buus, Schiffer &
31                                     Buus, APC, Costa Mesa, CA; Wolfgang
32                                     Heimerl, New York, NY, on the brief).
33
1    FOR APPELLEES:       ROBERT J. BURNS (Joshua C. Krumholz, J.
2                         Mitchell Herbert, Jr., on the brief),
3                         Holland & Knight LLP, Boston, MA.
4
5         Appeal from the United States District Court for the
6    Southern District of New York (Preska, J.).
7
8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the order is AFFIRMED.

10       Plaintiffs-Appellants Ian Mitchell, Gordon Clark, and

11   Pat McGlynn appeal from the district court’s January 15,

12   2013 dismissal of their case pursuant to Federal Rule of

13   Civil Procedure 12(b)(6).    Mitchell v. Faulkner, No. 10 Civ.

14   8173(LAP), 2013 WL 150254, at *4 (S.D.N.Y. Jan. 15, 2013).

15   “We review this dismissal de novo, accepting all factual

16   allegations in the complaint as true and drawing inferences

17   from those allegations in the light most favorable to the

18   plaintiff.”    Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009)

19   (quotation marks and alterations omitted).    We assume the

20   parties’ familiarity with the facts and procedural history

21   of the case.

22       In the district court, plaintiffs asserted a claim for

23   unpaid royalties based, in the alternative, on contract and

24   unjust enrichment.    Such an alternative pleading is

25   permissible under New York law.     See Beth Israel Med. Ctr.

26   v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d

                                     2
1    573, 586 (2d Cir. 2006).    However, the contract claim failed

2    because “any agreement to pay royalties extending beyond one

3    year must be in writing to satisfy the statute of frauds.”

4    Sirico v. F.G.G. Prods., Inc., 71 A.D.3d 429, 434 (1st Dep’t

5    2010).    Plaintiffs now appeal only the dismissal of the

6    unjust enrichment claim, which, they argue, avoids the

7    statute of frauds defense and entitles them to a share of

8    unpaid royalties.

9           We need not resolve this question, however, because

10   plaintiffs’ unjust enrichment claim, which premises damages

11   on royalty payments, is barred by the statute of

12   limitations.    A claim for unjust enrichment must be based on

13   the value of plaintiffs’ contribution to the joint effort of

14   the band at the time it made the relevant records, not on

15   the income stream resulting from a revival over thirty years

16   later.    That contribution and the failure of the defendants

17   to pay for the value of the effort occurred well over six

18   years ago and is barred by the statute of limitations.

19   N.Y.C.P.L.R. § 213; see Lawyers’ Fund for Client Prot. of

20   the State of New York v. Gateway State Bank, 239 A.D.2d 826,

21   827 (3d Dep’t 1997); Rosner v. Codata Corp., 917 F.Supp.

22   1009, 1021 (S.D.N.Y. 1996); see also Sirico, 71 A.D.3d at

23   435.

                                    3
1        We have considered all of plaintiffs’ arguments and

2   find them to be without merit.   For the reasons stated

3   above, the judgment of the district court is AFFIRMED.

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7




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