Keep on Kicking Music, Ltd. v. Hibbert, No. 15-cv-07464 (S.D.N.Y. July 31, 2017) [click for opinion]

This case arises from a dispute between Plaintiff Keep on Kicking Music, Ltd. ("Keep on Kicking"), a music record label, and Defendant Frederick "Toots" Hibbert, a Jamaican singer and songwriter. In September 2016, Keep on Kicking propounded discovery requests and a notice of deposition upon Hibbert. Hibbert failed to respond. In December 2016 Plaintiff re-served the same requests. In January 2017, Hibbert requested an extension to comply with the requests, which the district court denied. In February 2017, Plaintiff filed a pre-motion conference letter seeking leave of court to file a sanctions motion, but later withdrew the motion based on Hibbert's assurance that he would fully comply with discovery demands and appear for deposition by March 2017. When Hibbert failed to comply with discovery demands or appear for deposition, the district court permitted Keep on Kicking to file a motion for sanctions. Hibbert blamed his failure to comply with his discovery obligations on his extensive travel schedule as a performing artist and on his manager's failure to keep him informed of the case filings. Hibbert maintained that these repeated lapses were neither willful nor in bad faith.

In its motion for sanctions, Plaintiff requested that the district court strike Hibbert's answer and counterclaims, grant declaratory relief for Keep on Kicking's remaining claims, and direct an inquest on damages. The district court denied this motion in part, calling Plaintiff's request drastic. "Such relief, if granted, would effectively end this action," the court reasoned, finding that, while Hibbert's failure to comply with discovery obligations had been frustrating and inexplicable, his actions were not willful or in bad faith. However, the court agreed that some form of sanctions should be imposed on Hibbert, who acted carelessly and without excuse. The court therefore chose to impose a less severe monetary sanction of $12,500. The court also directed Hibbert to respond to all outstanding discovery requests.

In May 2017, during the pendency of these discovery proceedings, Hibbert commenced an action against Keep on Kicking in Jamaica. Plaintiffs sought to obtain an order directing Hibbert to dismiss the Jamaican action, or to enjoin Hibbert from further pursuing his claim in the Jamaican proceedings until the resolution of the United States federal suit.

In order for a court to issue an anti-suit injunction against parallel litigation, the parties must be the same in both matters and resolution of the case pending before the enjoining court must be dispositive of the action to be enjoined. The enjoining court must also consider a number of additional factors, including whether parallel litigation would frustrate public policy in the enjoining forum, be vexatious, or prejudice any party.

The district court held that the threshold requirements were met in this case and that the additional considerations also favored issuing an anti-suit injunction. As the court reasoned, both parties were involved in both suits and both suits involved determination of the parties' respective rights in Hibbert's musical compositions. Further, the court noted that Hibbert appeared to re-assert claims in Jamaica that had already been resolved in the present action. Coupled with the fact that Hibbert filed the Jamaican action during the pendency of the discovery proceedings, the court remarked that the Jamaican action appeared to be a "hastily filed attempt to end run this action and circumvent the [prior] rulings rendered against Hibbert." The court further held that the threat of inconsistent rulings if the Jamaican case was allowed to proceed constituted irreparable harm and that Plaintiffs had established the basic requirements necessary to impose a preliminary injunction enjoining the Jamaican case.