Makaveli - 7 Day Theory

Groups/Law Suits

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Tupac's record labels he got signed to throughout his life and his law suits.

Born Busy

In eighth grade, Tupac under the alias MC New York, Ace Rocker and DJ Plain Terror formed a group, Born Busy. They used to write lyrics for Jada Pinkett who was rapping back then.

Underground RailRoad

If you take one look in the 2Pacalypse Now booklet, you will notice that all songs are produced by the so called Underground RailRoad. The Underground RailRoad is pretty unknown to most Pac fans. It consists of Raw Fusion, the Live Squad, Big D The Impossible, Pee Wee, Jeremy and members of Digital Underground, the crew Pac joined in the bay area and had his first Studio Records with. Live Squad was the crew of Randy 'Stretch' Walker who was Pac's closest homeboy around the time when 2Pacalypse Now and Strictly For My NIGGAZ were produced. For some unknown reason the Underground Railroad split shortly after that.

Digital Underground

Tupac was 18 when he joined the bay area based rap crew Digital Underground which was formed by Shock G and ChopMaster J. They had their first record in 1987 called 'Underwater Rimes' which made it to No. 1 in the Netherlands. Then in 1989 they signed to 'Tommy Boy Records.' Around that time they had 7 members, one of them was Tupac. Tupac joined the group and went on tour with them.  In order to make room for him on the tour he filled the roady position. He first appeared on a record on the song 'Same Song' on 'This is an EP release'. Then later he went on to rap under his alias MC New York and went with DU on a world tour. Tupac became a solo artist with his first solo record '2Pacalypse Now' but was close with DU until he died in 96.

2 from the Crew

In 1986 Tupac joined the crew of '2 from the Crew', which was a rap group formed by teenagers who lived in the 'Jungle' of Marin City. This was the time when Pac first came up with his 'Thug Life'. They were called thugs in the neighborhood, that's why their theme song was called 'Thug Life'. So you can see that Pac didn't came up with Thug Life only for the media as some people claim; he was really living it. The group made songs like 'Lifestyle of the Poor and Homeless' and 'Lets Get It On'. They were rapping about the life of a young black male living in the ghetto, a topic Pac always wanted to inform the people about.

Strictly Dope

Tupac was very lucky when he met Leila Steinberg in San Francisco. He became friends with her and she became his manager. She was a show moderator and had good connections in the music industry.  She introduced Pac to Ray Luv and later, Tupac and Ray formed the group 'Strictly Dope'. They recorded several songs and after his death they were released on the album '1 in 21'. It was Leila who introduced Pac to Atron Gregory, who was the manager of the grammy-nominated group Digital Underground and liked Pacs raps because they were straight of the street.

ThugLife

In 1986, Tupac and another rapper formed the group 2 From The Crew. People in their neighborhood always called them thugs, so they started saying, "Thug Life. Shut up, beitch."  They eventually recorded a song titled "Thug Life." Years later, Tupac and Randy "Stretch" Walker formed the duo Thug Life. Stretch later left the group for unknown reasons.

In 1992, Tupac met Tyruss "Little Psycho" Himes. They recorded a song also titled "Thug Life" and soon Little Psycho joined the group under the name Syke. Later Macadoshis and The Rated R joined the group. They signed with Interscope Records and recorded an LP titled Thug Life Volume 1. It was so hardcore and underground that Interscope at first didn't want it, but they later changed their mind. Then Tupac's stepbrother, Mopreme Shakur, joined the group.

On September 26, 1994, Thug Life Volume 1 was released. It sold gold, which was good, but not as good as they expected. A lot of people blamed Interscope who edited and removed a lot of songs on the LP. The first single and video was "Pour Out A Little Liquor" which was a Tupac solo song. The second, third and fourth singles and videos were "Cradle To The Grave," "How Long Will They Mourn Me?" and "It Don't Stop."

On November 30, Tupac was robbed and shot four times at Quad Recording Studios in New York. The next day he was arrested for sexual abuse. He was found guilty and on Februrary 14, 1995, he was sent to prison. On October 12, Death Row Records, Interscope Records and Time Warner paid a $1,4 million bail to have Tupac released. In return he had to sign a three album deal with Death Row Records.

After all this, the group broke up. Syke and Mopreme joined Tupac's new group, the Outlawz, but then left. Syke signed with Makaveli Records and he and Tupac were planning to record a second Thug Life volume, but on September 7, 1996, Tupac was shot four times in a drive-by-shooting in Las Vegas, Nevada. He was taken to University Medical Center where he died a week later."

Outlawz

The Outlawz are a crew that Tupac formed just prior to his death.  Check out the Outlawz section of this site from the site navigation for more information.

Since Tupac's death, there has been a struggle over his estate.  Now, people, many of who were too coward to file a suit while he was alive, are seizing the opportunity to grab part of the estate.  Here's a breakdown of some of the law suits that have taken place.  Everything here is correct to the best of my knowledge, if you have any further information or feel that something here is incorrect, please let me know.  If you have a Tupac site and want to use this, please let me know and give me credit where it is due.
  
BadAzz vs. Deathrow

Badazz is suing Deathrow for $500,000 over the song he did with Pac on the Makaveli 7 Day Theory CD, "Krazy".  Apparently he wasn't paid any royalties for the song.

Afeni Shakur vs. Deathrow

Successful lawsuits were won by the estate to gain merchandising rights to Shakur's image, which means it would receive royalties from T-shirts, posters, hats etc., and they also won a suit against Deathrow to gain the rights to unreleased material.

A $7.1 million suit by Death Row Records, demanding reimbursement for cash advances that Shakur allegedly used for cars, houses, jewelry and other expenses. The estate filed a 41- page counter suit, accusing Death Row of looting $50 million from Shakur to maintain the extravagant lifestyles of label head Marion "Suge" Knight and other executives.

C. Delores Tucker vs. Estate of Tupac Shakur

A $10 million lawsuit by C. Delores Tucker, a virulent opponent of gangsta rap. Tucker, who once labeled Shakur's music "pornographic smut," claimed lyrics on Tupac's 9 million-selling album "All Eyez on Me" were so demeaning that it affected her sex life.  Two songs derisively mentioned Tucker by name. On one, "How Do U Want It," Shakur rapped: "Delores Tucker, you'se a motherf*cker/Instead of trying to help a ni**a, you destroy a brother", the other song is "Wonda why they call u B*tch."

Read the Official Court Document

William Garland vs. Estate of Tupac Shakur

A lawsuit was also filed by Tupac's father, William Garland, seeking 50 percent of Tupac's Estate.  Garland had little contact in Tupac's Life and until Tupac got shot in '94 Tupac believed his father was dead.  He was only trying to make money off of his blood-only son.  The case was previously thrown out of court, but ended in a settlement of $540,000 plus legal fees totaling just over $350,000.

Jacquelyn McNealey vs. Estate of Tupac Shakur

Jacquelyn McNealey was shot and paralyzed by a stay bullet at a 1993 Tupac concert in Pine Bluff, Ark. Fischbein.  She claims that Tupac got the crowed all fired up, resulting in her being shot.  A November 1996 court award of $16.6 million was overturned when it was ruled that Tupac's estate wasn't allowed to present a defense at the trial.  She later settled for $2 million.

Whitwells vs. Estate of Tupac Shakur

Two off duty policemen claimed they were crossing the road and were almost hit by a car back in 1993.  They got into a dispute with the driver, and 2 other cars pulled up, they claim they ran but were shot in the buttocks.  Witnesses later identified the shooter as Shakur, who was in town for a concert and staying at the same hotel as the Whitwells.  "Criminal charges were dropped when it emerged that the policemen had been drinking and had initiated the incident, and when the prosecution's own witness testified that the gun one of the officers threatened Tupac with had been seized in a drug bust and then stolen from an evidence locker."  Civil suit with one officer was settled out of court, the officer in this case was awarded the amount of $210,000.

Johnny Lee Jackson (Johnny J) vs Deathrow

Johnny J. says he co-wrote and helped produce 11 songs on All Eyez on Me and was never paid the $100,000 advance or the per song royalties of 3% he was supposed to receive.  I'm assuming there are still hard feelings between him and Deathrow as the word Deathrow was edited out of songs he produced for the album "Until The End of Time."

Orlando Anderson vs. Estate of Tupac Shakur

Orlando Anderson, a crip considered a suspect in the shooting of Tupac, was beaten by Tupac and Suge in the lobby Sept, 7, 1996 of the MGM theater the night of the Tyson fight and Tupac shooting.  Although Anderson was later killed in a driveby thought to be linked to the shooting of Tupac, a suit against Tupac's estate will continue.  Suge was ruled to have been responsible in the beating and sentenced to a 9 year prison sentence for violation of parole.

R&S Antiques Inc vs. Estate of Tupac Shakur

A Beverly Hills Jeweler is suing the estate claiming Tupac had an unpaid tab of $38,000 for a white gold and diamond bracelet and a $45,000 medallion designed by Gianni Versace.  R&S Antiques Inc is seeking in access of $93,000 for the jewelry and interest on it.

Afeni Shakur vs. Orlando Anderson

Sept 16th, Afeni Shakur filed a wrongful death suit against Orlando Anderson.  Afeni Shakur's lawyer, Richard Fishbein, says the suit was filed because, "The Las Vegas police have as much interest in solving this crime as the man on the moon... I believe I cannot do any worse than they have."

Jaques Agnant vs Estate of Tupac Shakur

In the song "Against All Odds" which appeared on the post humorous album, Makaveli, Tupac labelled Jaques Agnant a snitch.  A former friend of Tupac Jaques Agnant had ties to the Black Mafia.  He was friends with the woman who accused Tupac of rape in 1994.  Although Jaques Agnant aka Hatian Jack, was involved in the incident they had separate trials and Agnant got off while Tupac was sentenced to 4 years in prison.  Tupac referenced this in "Against All Odds" stating "Same crime different trials."  After the death of Tupac Agnant filed a suite against Tupac's estate for over $200 million claiming that because of Tupac's song he couldn't find work and was afraid for his life after being labeled an informant.

Official Court Document
 
JACQUES AGNANT, Plaintiff, -against- TUPAC SHAKUR a/k/a "MAKAVELI," AND/OR THE 
ESTATE OF TUPAC SHAKUR, DEATH ROW RECORDS/INTERSCOPE RECORDS, JOSHUA'S DREAM, INTERSCOPE PEARL MUSIC, WARNER-TAMERLANE PUBLISHING CORP., SUGE PUBLISHING, HURT-M-BAD, TOMMY DAUGHERTY and LANCE PIERCE, Defendants. 

97 Civ. 3424 (MBM) 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 

30 F. Supp. 2d 420; 1998 U.S. Dist. LEXIS 19714 

December 16, 1998, Decided 
December 18, 1998, Filed 

DISPOSITION: [**1] Defendants' motions for summary judgment granted and complaint dismissed as to these defendants. 


CASE SUMMARY 

PROCEDURAL POSTURE: Plaintiff, an alleged informant, claimed libel by defendant record producers through a rap song, the case having been removed from the Supreme Court of New York County (New York), to the district court. Defendants filed a motion for judgment on the pleadings or, in the alternative, summary judgment. Plaintiff alleged that the lyrics referred to him as working as an undercover federal informant against defendant rap artist. 

OVERVIEW: Plaintiff, an alleged informant, claimed that a rap song by  defendant record producers falsely accused him of working as an undercover federal informant and that, as a result, he suffered damage to his reputation and endangerment. However, the court asserted that, even accepting that the statements at issue were false and caused plaintiff injury, the claim must be rejected, because to be libelous under New York law, a false statement must hold plaintiff up to ridicule or scorn in the minds of right-thinking persons, but those who would think ill of one who legitimately cooperated with law enforcement officials were not such persons. The court found that granting a pro tanto motion for leave to amend the complaint would prejudice defendants and be futile, because plaintiff did not plead and could not prove the requisite injury. The court found that no reasonable jury could interpret the disputed lyrics as urged by plaintiff without knowing a lot of background. Because the allegedly defamatory statements were not libelous per se, plaintiff was required to plead and prove special damages, but he did not. The court granted summary judgment. 

OUTCOME: The court granted defendant record producers' motions for summary  judgment, and the complaint was dismissed as to these defendants, because plaintiff's libel claim could not be libelous under New York law, and amendment would be futile. 

CORE TERMS: summary judgment, libel, defamatory, informant, lyrics, special  damages, reputation, matter of law, nigger, defamation, rap, odds, accusation,  deposition, libelous, falsely, song, accuse, plead, album, slander, defamatory meaning, law enforcement, anti-social, declaration, pretrial, realist, lying, shit, shot 

COUNSEL: For Plaintiff: PAUL S. BRENNER, ESQ., New York, N.Y. 

For Estate of Tupac Shakur, Defendant: KENNETH G. SCHWARZ, ESQ., WILLIAM A.  ZOLLA, ESQ., Fischbein Badillo Wagner Harding, New York, N.Y. 

For Interscope Records, Interscope Pearl Music, Warner-Tamerlane Publishing Corp., Defendants: CHARLES B. ORTNER, ESQ., MICHAEL T. MERVIS, ESQ., JARED L. GURFEIN, ESQ., Paul, Hastings, Janofsky & Walker LLP, New York, N.Y. 

For Death Row Records, Suge Publishing, Defendants: STEPHEN F. HUFF, ESQ., TOM J. FERBER, ESQ., Pryor Cashman Sherman & Flynn, New York, N.Y. 

JUDGES: Michael B. Mukasey, U.S. District Judge. 

OPINION BY: Michael B. Mukasey 

OPINION: [*421] OPINION AND ORDER 

MICHAEL B. MUKASEY, U.S.D.J., 

This libel case, initially filed in Supreme Court, New York County, and removed here pursuant to 28 U.S.C. ?? 1332, 1441 (1994), arises from statements allegedly made about plaintiff, Jacques Agnant, in a rap song written and performed by the late Tupac Shakur. Plaintiff sues the Estate of Tupac Shakur (the "Shakur Estate"), Interscope Records, Interscope Pearl Music, Warner-Tamerlane Publishing Corp., [**2] Death Row Records, Inc. and Suge Publishing (collectively, the "Record Company defendants"), as well as other companies and individuals allegedly involved in the production of the song. The Record Company defendants move for judgment on the pleadings or, in the alternative, summary judgment. The Shakur Estate moves for summary judgment. For the reasons stated below, defendants' motions for summary [*422] judgment are granted, and the complaint is dismissed as to these defendants. 

I. 

The following relevant facts are viewed in the light most favorable to plaintiff. n1 Prior to his murder in September 1996, Tupac Shakur was a well-known and successful rap music artist. (Compl. P 3; Gurfein Decl. Ex. C) n2 In late 1993, Shakur, plaintiff and a third man were arrested and indicted for sexually assaulting a woman in a New York City hotel. (Gurfein Decl. Ex. C, at 1) Thereafter, the charges against plaintiff were severed from those against Shakur, whose case went to trial in late 1994 and resulted in a conviction. (Compl. P 16; Gurfein Decl. Ex. C, at 3, 6) Several months later, plaintiff pleaded guilty to lesser charges, for which he was sentenced to three years' probation and fined $ 1000. (Agnant [**3] Dep. at 15-16) n3 

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n1 Plaintiff failed to respond to defendants' Local Rule 56.1 statements. As such, the material facts contained in defendants' statements are deemed admitted as a matter of law. See Local Civil Rule 56.1(a), Local Civil Rules of the U.S. District Courts for the Southern and Eastern Districts of N.Y. ("All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party."); see also Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998). 

n2 "Compl." refers to plaintiff's Verified Complaint, dated March 19, 1997, and filed in Supreme Court, New York County. It is attached as an exhibit to the Declaration of Jared L. Gurfein. (See Gurfein Decl. Ex. A) 

n3 "Agnant Dep." refers to plaintiff's pretrial deposition, taken on October 17, 1997. Select pages of the deposition transcript are attached as exhibits to the Declaration of Jared L. Gurfein, the Affidavit of Kenneth G. Schwarz and the Declaration of Michael T. Mervis. (See Gurfein Decl. Ex. B; Schwarz Aff. Ex. B; Mervis Decl. Exs. B, D) 

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[**4] 

In December 1996, an album was released, featuring Shakur under the posthumous alias "Makaveli," titled "The Don Killuminati: The 7 Day Theory." (Compl. P 14; Gurfein Decl. P 6, Ex. E) The album included a song titled "Against All Odds," which contained the following lyrics, as reprinted in the complaint: 

. . . know that this be the realist [sic] shit I ever wrote . . . Hoping my true mother fucker know this be the realist [sic] shit I ever wrote, I heard he was a light skin stockey with a Haitian accent jewelry fast cars and known for flashing listen while I take you back and lace this rap a real live tale about a snitch named Haitian Jack, knew he was working for the fed. Same crime different trial, Nigger picture what he said and did I mention promised to pay back to me Hinchman in due time. I knew you Bitch Nigger is listening the world is mine set me up wet me up niggers struck heard your guns bust but you tricks never shook me up. Touch one of mine or everything I owe I will destroy everything you touch. Play the game nigger all out warfare eye for eye last words to a bitch nigger why you lie, now you got to watch your back now watch your front now here we [**5] come gun shot to tut now you are stuck, fuck the rap game this is M.O.B. so believe me, we are enemies I go against all odds. I hope my true mother fuckers know this be the realist shit I ever wrote against all odds.

(Compl. P 15) To date, the album has sold approximately 7 million copies in the United States and 28 million copies worldwide. (Id. P 14) 

In his complaint, plaintiff alleges that the above lyrics refer to him and, as understood by the general public, state that he "was working as an undercover federal informant" against Shakur in relation to the rap artist's 1994 trial. (Id. P 16) As a result of the lyrics, plaintiff alleges, he "has been unable to find employment commensurate with his training and experience, and has had his reputation destroyed in the community." (Id. P 19) He seeks $ 200 million in compensatory damages as well as punitive damages. (Id. P 20) 

The allegations in the complaint notwithstanding, the evidence reveals that plaintiff is currently employed "in an executive capacity" at a record company called Undeas Entertainment ("Undeas"). (Rivera Aff. P 1). In affidavits submitted in opposition to these motions, plaintiff and the [**6] president of Undeas, Lance Rivera, imply that plaintiff got his current job after the release of "The Don Killuminati: The 7 Day Theory," and only [*423] then because plaintiff and Rivera were "childhood friends." (Id. PP 2, 4; Agnant Aff. P 9) In his pretrial deposition, taken on October 17, 1997, however, plaintiff testified that he had worked continuously for Undeas, as "Director of A&R," beginning in late 1994 or early 1995. (Agnant Dep. at 51-52, 111) Plaintiff testified that, in 1995 and 1996, he had received approximately $ 120,000 in compensation from Undeas, and that he expected to receive a similar amount, if not more, for 1997. (Id. at 52, 57-60, 74) Moreover, plaintiff acknowledged that his employment contract prohibited him from seeking income from any source other than Undeas and that, as of the time of his deposition, he had not searched for any additional work or income. (Id. at 54, 58, 60) Plaintiff conceded also that his employer had not disciplined or threatened him in the period following the release of Shakur's album. (Id. at 61) Finally, he testified that he was happy working for Undeas and had no intention of seeking other employment. (Id. at 60) [**7] 

II. 

As noted, the Record Company defendants move for judgment on the pleadings or, in the alternative, for summary judgment. Because the Shakur Estate moves solely for summary judgment, and because I have considered materials outside the pleadings, see Fed. R. Civ. P. 12(c), I will treat both motions as motions for summary judgment. 

Summary judgment is mandated when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a summary judgment motion, "the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party." Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). Nevertheless, Rule 56 jurisprudence is clear in "providing that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. [**8] Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party, therefore, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "Conclusory allegations will not suffice to create a genuine issue." Delaware & Hudson Ry. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990). 

III. 

In their respective motion papers, defendants raise four arguments in favor of summary judgment: first, that the statements at issue are not capable of a defamatory meaning; second, that even if the statements are capable of a defamatory meaning, the statements are not libelous per se and plaintiff has failed to plead and cannot prove special damages, as required; third, that the statements are protected opinion; and fourth, that plaintiff is a public figure and the statements implicate a matter of public concern, requiring plaintiff to plead and prove actual malice or gross irresponsibility, which he has not done and cannot do. The Shakur Estate raises as an additional argument that plaintiff failed to comply with the necessary provisions of [**9] California and New York probate law regarding claims against estates. Because I conclude that summary judgment is warranted on the basis of defendants' first two arguments, it is unnecessary for me to consider the others. 

Libel law provides redress for injuries to a person's reputation caused by statements which tend to "expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society." Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 587, 665 N.E.2d 153 (1996) (internal quotation marks and citations omitted); accord Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997). Although it is the jury's province to determine whether the plaintiff has actually been defamed, a threshold issue for resolution by the court is [*424] "whether the statement alleged to have caused plaintiff an injury is reasonably susceptible to the defamatory meaning imputed to it." Levin, 119 F.3d at 195 (citing James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 874, 353 N.E.2d 834 (1976)); see also Aronson v. Wiersma, 65 N.Y.2d 592, 594, 493 N.Y.S.2d [**10] 1006, 1007, 483 N.E.2d 1138 (1985). The court's threshold inquiry is guided by both the meaning of the words as they would commonly be understood and the context in which they appear. See Levin, 119 F.3d at 195. 

Here, plaintiff alleges that Shakur's song "Against All Odds" falsely accuses him of "working as an undercover federal informant" and that, as a result of this accusation, he has suffered damage to his reputation and been placed in danger. (Compl. PP 18-19)Even accepting that the statements at issue are false and caused plaintiff injury, however, plaintiff's claim must be rejected. In order to be libelous under New York law, a false statement must hold the plaintiff up to ridicule or scorn in the minds of "right-thinking persons"; those who would think ill of one who legitimately cooperates with law enforcement officials are not such persons. Cf. Restatement (Second) of Torts ? 559, cmt. e (1977) ("The fact that a communication tends to prejudice another in the eyes of even a substantial group is not enough if the group is one whose standards are so anti-social that it is not proper for the courts to recognize them."); W. Page Keeton et al., Prosser and Keeton [**11] on Torts ? 111, at 778 (5th ed. 1984) ("The line is drawn . . . when the group who will be unfavorably impressed becomes . . . one whose standards are so clearly anti-social that the court may not properly consider them."). 

This court is not the first to face the issue of whether falsely accusing one of acting as an informant can be defamatory. So far as I can tell, every other court to have considered the question, save one, has held, as a matter of law, that such a statement cannot be defamatory, the sole exception being the Scottish court in the nineteenth-century case of Graham v. Ray, 13 Sess. Cas. 634, 636 (1851). See Burrascano v. Levi, 452 F. Supp. 1066, 1072-73 (D. Md. 1978), aff'd sub nom Burrascano v. U.S. Attorney Gen., 612 F.2d 1306 (4th Cir. 1979); Saunders v. Board of Directors, WHYY-TV, 382 A.2d 257, 259 (Del. Super. Ct. 1978); Heimerle v. Charter Books, 11 Media L. Rep. (BNA) 1278, 1279 (Sup. Ct. N.Y. County 1984); Connelly v. McKay, 176 Misc. 685, 28 N.Y.S.2d 327, 329-30 (Sup. Ct. N.Y. County 1941); Rose v. Borenstein, 119 N.Y.S.2d 288, 289-90 (N.Y. City Ct. 1953); see also Danias v. Fakis, 261 A.2d 529, 531 (Del. Super. Ct. 1969); [**12] Hallock v. Miller, 2 Barb. 630 (1848); cf. Daniel More, Informers Defamation and Public Policy, 19 Ga. J. Int'l & Comp. L. 503, 504-09, 524-26 (1989) (discussing cases from the United States and other jurisdictions). n4 Notably, the leading case, Connelly, is a New York case. 

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n4 Several law review commentators have criticized the holdings in these cases on the ground, for example, that they provide "an open invitation to judges to assess which subgroups within society are or are not worthy of the law's attention and respect." Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L. Rev. 1, 20 (1996); see id. at 20-25; More, supra, passim; see also Randy M. Fogle, Is Calling Someone "Gay" Defamatory?: The Meaning of Reputation, Community Mores, Gay Rights, and Free Speech, 3 Law & Sex 165, 171-74 (1993); cf. Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution 74 Calif. L. Rev. 691 (1986) (discussing Connelly and other informant defamation cases and implicitly criticizing them). These commentators are free to comment and criticize, but unless and until they become judges in jurisdictions whose law applies, and have occasion to rule rather than merely opine, I am free to disobey their prescriptions. Moreover, the task of deciding what is or is not defamatory necessarily involves a court in a consideration of both community norms and the policy implications of alternative rulings. 

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[**13] 

In Connelly, the owner of a service station and rooming house patronized 
primarily by interstate truck drivers alleged slander based on a statement that 
he was identifying to the Interstate Commerce Commission (the "ICC") truck 
drivers who were violating ICC rules. See Connelly, 28 N.Y.S.2d at 328. The 
court assumed arguendo that the plaintiff's reputation and livelihood had been 
adversely affected and that the slander alleged conduct that was considered 
heinous within the plaintiff's community. See id. at 328-29. [*425] 
Nevertheless, the court dismissed the complaint: 

The language attributed to the defendant cannot under any circumstances be 
held defamatory, and not being defamatory is not actionable. . . . It is true 
that informers are not always held in too high esteem, and violators of the law 
might have good cause to shun one who engaged in such practice, but, 
nevertheless, such acts cannot constitute a foundation upon which to build an 
action for slander. . . . To hold otherwise would be contrary to the public 
interest, in that it would penalize the law-abiding citizen and give comfort to 
the law violator. It would impede law enforcement for the benefit of the [**14] 
anti-social.

Id. at 329. Insofar as plaintiff alleges libel based on the accusation that he 
served as an informant, the complaint must be dismissed. 

IV. 

My decision that plaintiff cannot maintain an action for libel based on the 
accusation that he was an informant does not end the inquiry, however. In his 
memorandum of law, plaintiff raises for the first time additional allegations of 
libel stemming from the lyrics in "Against All Odds." According to plaintiff, 
the lyrics accuse plaintiff "of shooting Tupac Shakur, of informing falsely upon 
him to the District Attorney's Office, of lying to him, and of trying to hurt 
his musical career." (Pl. Mem. in Opp. at 1) n5 In particular, plaintiff argues 
that: (1) Shakur's statement "the world is mine set me up wet me up niggers 
struck heard your guns bust but you tricks never shook me up" falsely alleges 
"that plaintiff shot him, tried to hurt his recording career, and was generally 
dishonest," (id. at 6); (2) the statement "all out warfare eye for eye last 
words to a bitch nigger why you lie" falsely accuses plaintiff of lying to 
authorities and to Shakur, (id. at 6-7); and (3) the phrase "and did I mention 
promised [**15] to pay back to me Hinchman in due time" refers "to the fact 
that plaintiff promised Shakur a recording deal with Hinchman Records, but did 
not come through on the promise." (Id. at 7) In their reply papers, defendants 
contend, first, that plaintiff's new arguments should not be considered because 
they were raised for the first time in his memorandum of opposition, after the 
close of discovery, and, second, that even if the new arguments are considered 
they are deficient as a matter of law. 

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n5 Plaintiff neglected to number the pages of his memorandum of law. Page 
citations refer to the pages as they would have been numbered, beginning with 
the caption page as page one. 

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Although plaintiff's complaint quoted Shakur's lyrics at some length, the accusation that plaintiff worked as an informant was the only feature of the lyrics singled out as defamatory. (See Compl. P 16) Indeed, the complaint itself stated that "the remainder of the offensive words relate to how defendant TUPAC [Shakur] would get revenge [**16] against the plaintiff." (Id.) In addition, plaintiff acknowledged at his deposition that the accusation he was an informant was "basically the heart" of his position in this case. (Agnant Dep. at 87) Finally, in a letter to defendants' counsel dated December 11, 1997 -- only eight days before the Record Company defendants served their present motion -- plaintiff's counsel discussed exclusively the allegation regarding plaintiff's working as an informant and implicitly accepted that the case would stand or fall on whether this statement was defamatory. (See Mervis Decl. Ex. E) 

Were I to treat plaintiff's arguments as a pro tanto motion for leave to amend the complaint, I would be on firm ground in refusing to consider plaintiff's new arguments and granting summary judgment to defendants, both because such belated amendment would prejudice defendants, cf. Ansam Assoc., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) (upholding a denial of leave to amend a complaint in part because "permitting the proposed amendment would have been especially prejudicial given the fact that discovery had already been completed and [the defendant] had already filed a motion [**17] for summary judgment"), and, more significantly, because such amendment would be futile. Cf. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962) (holding that it is not an abuse of discretion to deny leave to amend where such amendment would be futile); [*426] Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("Where . . . there is no merit in the proposed amendments, leave to amend should be denied."). In order to make out a libel claimunder New York law, a plaintiff must show that the defendant published to a third party (1) a false and defamatory statement (2) which was "of and concerning" the plaintiff (3) with the requisite degree of fault -- the degree of which depends on the status of the libeled party and the subject matter of the statement, and (4) injury to the plaintiff. See Chaiken v. VV Publ'g Corp., 907 F. Supp. 689, 695 (S.D.N.Y. 1995), aff'd, 119 F.3d 1018 (2d Cir. 1997), cert. denied, 140 L. Ed. 2d 179, 118 S. Ct. 1169 (1998); see also Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61 (2d Cir. 1993). Even assuming that plaintiff could satisfy the first three elements of his prima facie case with respect to his new allegations [**18] of libel -- an assumption which defendants contend, with some justification, is unwarranted -- plaintiff's action would fail because he has not pleaded and cannot prove the requisite injury. 

Under New York law, a plaintiff who sues for libel must plead and prove special damages unless the allegedly defamatory statement falls into one of the categories of libel per se, such as allegations that plaintiff committed a crime or allegations that tend to injureplaintiff in the conduct of his trade, business or profession. See, e.g., Nunez v. A-T Fin. Info., Inc., 957 F. Supp. 438, 441 (S.D.N.Y. 1997). In the present case, plaintiff contends that the allegedly defamatory statements are libelous per se insofar as they accuse him of lying to law enforcement officials, shooting Shakur and reneging on his promise to secure a contract for Shakur with Hinchman Records. Such a "'strained, unreasonable and unjustified' interpretation," however, cannot form the basis of an action for libel. Rappaport v. VV Publ'g Corp., 163 Misc. 2d 1, 618 N.Y.S.2d 746, 748 (Sup. Ct. N.Y. County 1994) (quoting Tracy v. Newsday, Inc., 5 N.Y.2d 134, 137, 182 N.Y.S.2d 1, 4, 155 N.E.2d 853 (1959)), aff'd, 223 [**19] A.D.2d 515, 637 N.Y.S.2d 109 (1st Dep't 1996). Moreover, no reasonable jury could interpret the disputed lyrics in the manner urged by plaintiff without knowing -- at a minimum -- that plaintiff was arrested along with Shakur, that Shakur was shot in New York and that "Hinchman" was a reference to Hinchman Records. It is well established in New York, however, thatstatements cannot be libelous per se "if reference to extrinsic facts is necessary to give them a defamatory import," Aronson, 65 N.Y.2d at 594-95, 493 N.Y.S.2d at 1008, or if "innuendo" is needed "to enlarge" their meaning "beyond the significance expressed by the words themselves." Nunez, 957 F. Supp. at 441. Indeed, this is true even where the alleged defamation implicates a matter of "common knowledge." Sterling Doubleday Enter., L.P. v. Marro, 238 A.D.2d 502, 503-04, 656 N.Y.S.2d 676, 678 (2d Dep't 1997). 

Because the allegedly defamatory statements are not libelous per se, plaintiff would be required to plead and prove special damages to prevail on his libel claim. See, e.g.,Nunez, 957 F. Supp. at 441. Special damages consist of "'the loss of something having economic or pecuniary value,' which [**20] must flow directly from the injury to reputation caused by the defamation and not from the effects of the defamation." Id. (quoting Restatement (Second) of Torts, supra, ? 575, cmt. b). To satisfy the special damages requirement, a plaintiff must set forth an itemized account of his losses; round figures, general allegations of a dollar amount or boilerplate allegations of someimpairment to business reputation are insufficient. See id.; Newsday, Inc. v. C.L. Peck Contractor, Inc., 87 A.D.2d 326, 328, 451 N.Y.S.2d 415, 417 (1st Dep't 1982). 

Plaintiff more or less concedes that he has not pleaded special damages. The complaint alleges merely that "plaintiff has been unable to find employment commensurate with his training and experience, and has had his reputation destroyed in the community." (Compl. P 19) As stated, however, such a general allegation does not satisfy the requirement of pleading special damages, and plaintiff's new claims would therefore fail as a matter of law. Further, it appears from the record that plaintiff could not prove special damages even had his pleading sufficed. [*427] As he conceded at his pretrial deposition, plaintiff's salary and standing at [**21] Undeas were unaffected by the alleged libel, and he was prohibited by his own employment contract from seeking additional income elsewhere. To the extent that plaintiff's affidavits submitted in connection with the present motions contradict this earlier testimony, they may be disregarded. See, e.g., Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995) ("'It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.'" (quoting Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987)). 

In short, plaintiff's libel action would be without merit as a matter of law whether or not I granted him leave to amend the complaint to include his newly raised allegations. Consequently, summary judgment is granted. 

* * * 

For the foregoing reasons, defendants' motions for summary judgment are granted, and the complaint is dismissed as to these defendants. 

SO ORDERED: 

Dated: New York, New York 

December 16, 1998 

Michael B. Mukasey 

U.S. District Judge 

So that was his groups and law suits along with a little Official Document from the court. If you have any questions or comments feel free to send me an e - mail at, arak_ayoub@yahoo.com

Makaveli - 7 Day Theory...Dead or Alive?