Keep On Kicking Music, Ltd. v. Hibbert

Citation: 268 F. Supp. 3d 585Docket: 15cv7464

Court: District Court, S.D. New York; July 31, 2017; Federal District Court

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Movants, Keep on Kicking Music, Ltd. and Marc Antoine Chetata, requested sanctions against Defendants Frederick “Toots” Hibbert and his associated entities due to Hibbert's failure to produce documents and appear for deposition. After initial discovery requests in September 2016 and subsequent attempts to compel compliance, Hibbert assured Movants that he would fulfill these obligations by March 2017, leading to the withdrawal of the sanctions request. However, Hibbert did not comply, prompting Movants to file for sanctions in May 2017. 

The court analyzed the severity of the requested sanctions, which included striking Hibbert's answer and counterclaims, granting declaratory relief, and conducting an inquest on damages. Such severe sanctions require a finding of willful defiance or bad faith. Although Hibbert acknowledged carelessness due to his travel schedule and managerial issues, the court found that these excuses did not absolve him of his discovery responsibilities. Despite the acknowledgment of Hibbert's lapses, the court deemed the requested sanctions too harsh at this stage since Hibbert had not been warned that noncompliance could lead to dismissal. The court referenced previous cases to highlight that dismissal is an extreme measure reserved for significant delays and repeated failures to comply with discovery orders.

A party, Hibbert, canceled and did not reschedule a deposition, failed to appear for a court-ordered deposition, and only showed up after being warned of potential case dismissal. Despite the frustration caused by Hibbert's actions, the court determined there was no bad faith or willful defiance involved. However, Hibbert is warned that future non-compliance with discovery requests may lead to harsher sanctions, including the striking of his answer and dismissal of third-party claims. The court emphasizes the need to consider lesser sanctions before imposing severe penalties, referencing a case that supports this principle. Monetary sanctions of $12,500 are imposed on Hibbert, reflecting a portion of the attorneys' fees incurred by the Movants due to Hibbert's conduct. Additionally, Hibbert is ordered to respond to all outstanding discovery requests and attend depositions as outlined in the ruling.

Hibbert also initiated litigation against Movants in Jamaica concerning similar claims, prompting Movants to seek an order to dismiss the Jamaican action or enjoin Hibbert from pursuing it until this case is resolved. The court acknowledges its authority to enjoin foreign litigation but notes that such injunctions should be used with caution. To impose an anti-suit injunction, two criteria must be met: the parties must be the same in both actions, and the resolution of the case at hand must be dispositive of the Jamaican action. If these requirements are satisfied, the court will evaluate additional factors that may influence the decision, such as potential policy frustration, vexatious litigation, jurisdictional threats, and issues of delay or expense.

Threshold requirements for an anti-suit injunction are met as the same parties are involved in both the current action and the Jamaican Action. The resolution of claims regarding the interpretation of administration and publishing rights in Hibbert’s musical compositions will also resolve claims in the Jamaican Action. Courts recognize that anti-suit injunctions can be granted even when claims in different jurisdictions are not identical but stem from the same dispute. Hibbert’s third-party complaint against Chetata parallels his claims in Jamaica, primarily alleging misrepresentations that led to the Exclusive Administration Agreement.

Discretionary factors also support the injunction. The first and third factors, concerning threats to jurisdiction and public policy, are significant; the Jamaican Action undermines this Court’s jurisdiction, particularly since some claims were previously resolved in 2016. Allowing the Jamaican Action would contradict the finality favored in judicial decisions and risk inconsistent rulings. 

The second factor indicates that Hibbert’s foreign action is vexatious, as some of his counterclaims have already been dismissed by this Court. The fourth factor highlights prejudice against equitable considerations, given the timing of Hibbert’s action, which appears intended to distract from ongoing litigation in this forum. The fifth factor is satisfied because Movants have invested considerable time and resources in this case, and forcing them to litigate similar claims in Jamaica would impose an undue burden.

Having established the necessity for an anti-suit injunction, the Court must also assess whether a preliminary injunction is warranted. To obtain this, Movants must show irreparable harm without the injunction and demonstrate either a strong likelihood of success on the merits or serious questions warranting litigation, with the balance of hardships favoring them.

Irreparable harm arises from the potential for inconsistent rulings, especially since some claims have already been dismissed. A movant faces such harm when required to litigate across two continents, incurring additional costs related to re-litigating claims in the Jamaican Action. Serious questions exist regarding the merits of the remaining claims, justified by the ongoing discovery process. Consequently, Hibbert is preliminarily enjoined from pursuing the Jamaican Action until the current litigation is resolved.

Regarding the provisional remedy of attachment, such an order is discretionary and requires a showing of necessity for security purposes. Movants must demonstrate a probable success on the merits, valid grounds under CPLR 6201, and that their claim amount exceeds any known counterclaims. Movants failed to prove a likelihood of success, as the case is ongoing and discovery is still in progress. Their assertion that attaching Hibbert’s assets is necessary for future judgment satisfaction does not substantiate the need for an attachment order, especially given no evidence suggesting Hibbert is evading judgment.

The motion for an order of attachment is denied. The parties must complete document discovery by September 30, 2017, and Hibbert must appear for deposition in New York by October 31, 2017, with potential sanctions for non-compliance. The motion for sanctions is partially granted, imposing a $12,500 sanction on Hibbert, due by August 31, 2017. The injunction against Hibbert pursuing claims in the Jamaican Action is granted, with a proposed order to be submitted by August 4, 2017. The motion for attachment is denied, and the Clerk of Court will terminate the pending motion.