Hip-Hop Producer’s SCOTUS Petition Argues Ninth Circuit was Improperly Indifferent to ‘Unique, Paramount Issue’ of Subject Matter Jurisdiction

“[A]s to the issue of subject matter jurisdiction in appellate courts, discretion to consider the unraised issue is converted to obligation to decide the unraised issue. Conceptually, ‘may’ is alchemically converted to ‘must.’” – Gary Frisby’s Petition

https://depositphotos.com/69088459/stock-illustration-copyright-protection-in-headphones.htmlThis week, the U.S. Supreme Court docketed a petition for certiorari filed on September 17 by hip-hop producer Gary Frisby, who performs under the name G-Money, asking the Court to revive his musical composition copyright case that alleged infringement of Frisby’s 2013 beat track “Shawty So Cold.” Frisby’s appeal challenges the U.S. Court of Appeals for the Ninth Circuit’s ruling that the appellate court lacked subject matter jurisdiction over Frisby’s appeal from U.S. district court because he failed to file a notice of appeal, despite the fact that the court failed to inform Frisby that the ruling on summary judgment was filed.

Central California Consolidates Copyright Infringement Cases for Pretrial Purposes

Frisby’s infringement claims target Sony Music Entertainment and a pair of hip-hop artists performing tracks that allegedly use Frisby’s beat track: Michael Hernandez, performing as Foreign Teck, who produced J. Cole’s 2016 single “Déjà Vu”; and Bryson Tiller, who released “Exchange” in 2015. Frisby filed two lawsuits into the Central District of California, the first alleging infringement of the sound recording copyright owned by Frisby in his beat track, and the second alleging infringement of the musical composition copyright in Frisby’s beat track. Frisby’s amended complaint in the sound recording lawsuit became the operative complaint for both, and the Central California district court consolidated both cases for pretrial purposes, with all future filings to be held in the docket of the sound recording case.

While Frisby settled with the “Déjà Vu” defendants, Tiller filed a motion of summary judgment on both the sound recording and musical composition claims. The district court granted that motion and filed statements of the ruling in both the sound recording and musical composition cases. However, pursuant to a court order, Frisby’s attorney was only substituted into the sound recording case and was not on the electronic mailing list to receive filings in the musical composition case. Thus Frisby was not notified by his attorney of the copies of the summary judgment ruling and signed judgment entered in the musical composition case. Frisby pursued a motion for reconsideration on the judgment in the sound recording case, arguing on infringement of both the sound recording and musical composition claims, and filed a notice of appeal from the sound recording case after the district court denied the motion for reconsideration.

At the Ninth Circuit, the defendant’s answering brief argued that the appellate court lacked subject matter jurisdiction over the musical composition infringement claim as Frisby had not filed a notice of appeal from that case. In response, Frisby filed a motion to take judicial notice of the electronic filing mailing lists in both district court cases. Frisby’s reply brief also addressed the situation, noting the consolidation of the cases in district court and the court’s order that all future filings be filed in the sound recording case. In the brief, he argued that it would be a denial of the notice aspect of procedural due process to rule that his claim to musical composition infringement was not encompassed by the notice of appeal filed in the sound recording infringement case.

Section 1291’s Grant of Appellate Authority Interpreted by SCOTUS as Right to Appeal

In a two-page memorandum opinion, the Ninth Circuit struck down Frisby’s arguments and ruled that Frisby’s motion to take judicial notice was irrelevant to the jurisdictional question raised in the appeal. The Ninth Circuit interpreted the Supreme Court’s 2018 ruling in Hall v. Hall, which decided issues relevant to the right of appeal from a final decision in cases consolidated by U.S. district courts, as limiting the scope of consolidation such that each case retains its separate identity for the purpose of determining jurisdictional issues. The Ninth Circuit’s ruling also cited the Supreme Court’s 1976 per curiam decision in Butler v. Dexter, in which SCOTUS dismissed an appeal as the constitutional question raised by the appellant was not raised in the instant case but, rather, it was raised in other cases consolidated with that case.

Frisby then filed a petition for panel rehearing at the Ninth Circuit, which the appellate court ultimately denied, arguing that both Hall and Butler were distinguishable from the facts in Frisby’s appeal. Frisby argued that Hall was specifically limited to rights of appeal decisions in consolidated cases when individual cases are still active in the trial court, whereas Frisby’s musical composition case had reached a final decision. Frisby also contended that, unlike Butler, the triable issues of fact underlying the appeal were the same in both of the infringement cases. Frisby also noted that the district court’s treatment of his motion for reconsideration recognized that the cases were consolidated for pretrial purposes and that the summary judgment ruling was entered prior to jury trial.

Frisby’s petition for writ to the Supreme Court noted that the Court has often interpreted 28 U.S.C. § 1291, which provides the grant of appellate authority over final decisions as well as the scope of that authority, to find an implied right of appeal for aggrieved parties. Frisby notes that Section 1291’s language that courts of appeals “shall have jurisdiction” has been interpreted by the Court to mean “shall exercise jurisdiction,” including in decisions like Hardy v. United States (1964) where the court opined that “[w]e deal with the federal system where the appeal is a matter of right.”

Ninth Circuit’s Ruling Shows ‘Perfunctory Indifference’ on Paramount Issue of Subject Matter Jurisdiction

While Frisby acknowledged that “[t]he general rule is that federal appellate courts do not consider an issue not passed upon below,” he did note that appellate courts generally have discretion to consider such issues if they want. However, on the “unique, paramount issue” of subject matter jurisdiction, Frisby argued that appellate courts are obliged to decide those issues prior to others raised on appeal, even when those jurisdictional issues are not raised below or by either party in appellate briefing:

“Thus, as to the issue of subject matter jurisdiction in appellate courts, discretion to consider the unraised issue is converted to obligation to decide the unraised issue. Conceptually, ‘may’ is alchemically converted to ‘must.’”

While Supreme Court cases cited by Frisby for this proposition, including Liberty Mutual v. Wetzel (1976) and Mansfield, C. & L. M. Railway v. Swan (1884) involved rulings that the courts of appeals erroneously exercised subject matter jurisdiction where it didn’t exist, Frisby argued that it was equally as harmful for the Ninth Circuit to fail to exercise subject matter jurisdiction where it did exist. Further, unlike Liberty Mutual and Mansfield, the subject matter jurisdictional issue was raised at the court of appeal, whereas the jurisdictional issues in those cases were raised sua sponte by the Supreme Court.

Frisby argued that the Supreme Court should grant review not only to correct the Ninth Circuit’s erroneous holding, but also to to correct the appellate court’s “improper appearance of perfunctory indifference rather than conscientious respect for the paramount issue of subject matter jurisdiction.” Frisby noted that the Ninth Circuit dispatched his jurisdictional arguments without addressing any of them in the appellate court’s two-page memorandum opinion, and summarily dismissed Frisby’s petition for panel rehearing despite additional arguments on the jurisdictional issue. Further, while the Ninth Circuit cited Butler in its memorandum opinion, Frisby alleged that the Ninth Circuit provided no analysis as to how Butler applied to Frisby’s case. Under the circumstances, including Frisby’s compliance with the district court’s order to treat both cases as consolidated for pretrial purposes, Frisby argues that the Ninth Circuit is “improperly elevat[ing] form over substance” by determining that Frisby waived his right of appeal by failing to file a notice of appeal in the music composition case.


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