Yes. The musician's company, Songbyrd, filed its lawsuit too late. The law in New York gives you three years to sue someone for 'conversion,' which is like wrongfully keeping or using someone else's property. The judge explained that this three-year clock starts running the moment the wrongful act happens. In this case, the wrongful act happened in 1986 when Bearsville licensed the tapes to another company, because that's when Bearsville started acting like it owned the music. Since Songbyrd didn't sue until 1995, nine years later, it was well past the three-year deadline. It didn't matter that Songbyrd might not have known about the 1986 record deal.

Yes, Songbyrd waited too long to sue. The clock started ticking when Bearsville first used the recordings without permission, which was in 1986 when they let Rounder Records release an album. Songbyrd had three years to sue under New York law, but they waited until 1995. That's way too late.

Songbyrd argued that the time limit didn't start until they asked for the recordings back and Bearsville said no. But that rule only applies to good-faith buyers who think they have a right to the property. Bearsville knew they didn't have a right to the recordings, so that rule doesn't apply here.

The judge said it doesn't matter if Songbyrd didn't know right away that Bearsville was using the recordings. The clock starts when the wrongful act happens, not when the owner finds out.

It also doesn't matter that Bearsville let another company use the recordings in 1991. The time limit doesn't restart every time they do something new with the recordings.

Since Songbyrd didn't sue within three years of 1986, they missed their chance. The judge agreed with Bearsville and ended the case.

<?xml version="1.0" encoding="utf-8"?> <opinion type="majority"> MEMORANDUM-DECISION AND ORDER <author id="b278-19"> HOMER, United States Magistrate Judge. </author> Plaintiff Songbyrd, Inc. (“Songbyrd”) brought this action seeking monetary damages and a declaration of rights in certain recorded music tracks. Presently pending is a motion by defendant Estate of Albert B. Grossman, doing business as Bearsville Records, Inc. (“Bearsville”) for summary judgment pursuant to Fed.R.Civ.P. 56 on the ground that the action is barred by the applicable statute of limitations. Docket No. 40. Songbyrd opposes the motion. Docket No. 43. For the reasons which follow, the motion is granted. I. Facts <a class="footnote" href="#fn1" id="fn1_ref"> 1 </a> This case concerns the possession, ownership, and usage of several master recordings of musical performances made in the early 1970s by New Orleans musician Henry Roe-land Byrd, who was professionally known as “Professor Longhair” (“Byrd”). <a class="footnote" href="#fn2" id="fn2_ref"> 2 </a> The tapes were produced in a Baton Rouge, Louisiana recording studio and soon thereafter came into the possession of a predecessor in interest to Bearsville located in Woodstock, New York. Over time several requests have been made by representatives of Byrd to secure return of the tapes. Cometti Aff. (Docket No. 40), ¶ 10. It is unclear what if any response those requests received, but the tapes have remained in the physical custody of Bearsville continuously since the 1970s. Id. at ¶ 11. In August 1986, Bearsville licensed certain of the master recordings to Rounder Records *221 Corporation, which in 1987 released an album of Byrd’s music produced from the recordings. Cometti Aff., ¶ 12. In 1991, another recording based on the disputed master recordings was released by Rhino Records. That release was made possible by a licensing agreement between Bearsville and the production company. Id. at ¶ 13. II. Procedural Background Originally filed in Louisiana state court in 1995, this action was removed by Bearsville to the United States District Court for the Eastern District of Louisiana. Docket No. 1. Bearsville then moved pursuant to Fed. R.Civ.P. 12(b) to dismiss the claim on the ground that the court lacked personal jurisdiction and the claim was barred by Louisiana’s period of prescription. <a class="footnote" href="#fn3" id="fn3_ref"> 3 </a> The district court held that the action was barred by the applicable prescriptive period and granted the motion without addressing the jurisdictional question. Songbyrd, Inc. v. Bearsville Records, Inc., Civ.A. No. 95-3706, 1996 WL 337259 (E.D.La. June 18, 1996). Songbyrd appealed and the Fifth Circuit Court of Appeals reversed, holding that the claim was not prescribed under Louisiana law. 104 F.3d 773, 779 (5th Cir.1997). On remand, the district court considered the question of personal jurisdiction, concluded that jurisdiction was lacking, and transferred the action to this district. Docket No. 40, Ex. E. The present motion followed. III. Summary Judgment Standard Under Fed.R.Civ.P. 56(e), if there is “no genuine issue as to any material fact ... the moving party is entitled to judgment as a matter of law, ... where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party bears the burden of demonstrating that no genuine issue of material fact exists. FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994); see also Heyman v. Commerce &amp; Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975). Once the movant has come forward with sufficient evidence in support of the motion for summary judgment, the opposing party must “set forth specific facts showing that there is a genuine issue for trial” and cannot rest on “mere allegations or denials” of the facts asserted by the movant. Fed.R.Civ.P. 56(e); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). The trial court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985). “Furthermore, the non-movant ‘will have his allegations taken as true, and will receive the benefit of the doubt when his assertions conflict with those of the movant.’” Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.1996) (citations omitted). IY. Discussion A. Choice of Law When venue is originally placed in one jurisdiction and then transferred to another, it is generally the law of the transferor jurisdiction that applies in the new court. Ferens v. John Deere Co., 494 U.S. 516, 523, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990); Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). An exception exists when the transfer is made on the ground that the venue was improperly laid in the first instance, i.e., that the original court lacked personal jurisdiction over the defendant, rather than simply for the convenience of the parties. In those cases the transferee court applies the law of the forum in which it sits. Trierweiler v. Croxton &amp; Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir.1996); Muldoon v. Tropitone Furniture Co., 1 F.3d 964, 967 (9th Cir.1993); Manley v. Engram, 755 F.2d 1463, 1467 n. 10 (11th Cir.1985); Davis v. Louisiana State Univ., 876 F.2d 412, 414 (5th Cir.1989). The exception applies here because this action was transferred on the ground that the Louisiana court lacked jurisdiction. Docket No. 40, Ex. E. Both parties agree that under these circumstances, disposition of this case is governed by New York law. *222 B. New York Statute of Limitations This action is governed by the three year statute of limitations for recovery of chattel provided in N.Y. Civ. Prac. L. &amp; R. § 214(3) (McKinney 1990) Johnson v. Smithsonian Inst., 9 F.Supp.2d 347, 354 (S.D.N.Y.1998) (New York statute of limitations for conversion and replevin is three years). The issue presented here is when the claim accrued for statute of limitations purposes. The statute of limitations for conversion begins to run at the time of the conversion. Sp orn v. MCA Records, Inc., 58 N.Y.2d 482, 462 N.Y.S.2d 413, 416, 448 N.E.2d 1324 (1983); see also Vigilant Ins. Co. of Am. v. Housing Auth. of the City of El Paso, Tex., 87 N.Y.2d 36, 637 N.Y.S.2d 342, 347, 660 N.E.2d 1121 (1995). In Spom, New York’s Court of Appeals was presented with a case very similar to the ease at bar. There, the plaintiff, the successor in interest to the purported owner of rights in certain master recordings, sued the defendant record company for commercially exploiting the master recordings contrary to the plaintiffs interests. Sporn, 462 N.Y.S.2d at 414-15, 448 N.E.2d 1324. The record company defended on the ground that the three year limitations period had begun to ran at the time it began using the master recordings contrary to the plaintiffs purported interest and had expired prior to the commencement of the action. Holding that the statute of limitations for conversion begins to run at the time of the conversion, the Court of Appeals affirmed the grant of summary judgment in favor of the record company. Id. 462 N.Y.S.2d at 416. Songbyrd contends that Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 569 N.E.2d 426 (1991) (“Guggenheim ”), not Spom, governs this action. In Guggenheim, the New York Court of Appeals held that “a cause of action for replevin against a good-faith purchaser of a stolen chattel accrues when the true owner makes demand for return of the chattel and the person in possession of the chattel refuses to return it.” Id. 567 N.Y.S.2d at 626. Songbyrd argues that under Guggenheim the statute of limitations does not begin to run until after a demand for return has been refused, that such a demand has been made but not refused here and as a result the limitations period has not yet begun to run. Guggenheim, however, addresses the different circumstance of possession of a chattel by a bona fide purchaser for value and does not, therefore, provide the controlling rule of law here. Guggenheim, in fact, recognized that a different rule applies when the stolen chattel remains in the possession of the thief. Citing Sp orn, the court stated that in such a circumstance the statute of limitations begins to run from the time of the theft. Guggenheim, 567 N.Y.S.2d at 626, 569 N.E.2d 426. Here, the chattel at issue has remained in the possession of Bearsville, the party alleged to have committed the wrongful taking. There is no evidence that Bearsville was ever a bona fide purchaser for value. Thus, the statute of limitations here began to run at the time Bearsville converted the master recordings. See Vigilant Ins. Co., 637 N.Y.S.2d at 347, 660 N.E.2d 1121 (in a case not involving a bona fide purchaser, a conversion claim accrues at the time of the conversion). Thus, Guggenheim is limited to circumstances involving a bona fide purchaser’s possession of the chattel. Having concluded that Songbyrd’s conversion claim accrued at the time of the conversion, the question becomes when the master recordings were allegedly converted. “The tort of conversion is established when one who owns and has a right to possession of personal property proves that the property is in the unauthorized possession of another who has acted to exclude the rights of the owner.” Key Bank of N.Y. v. Grossi, 227 A.D.2d 841, 642 N.Y.S.2d 403, 405 (3d Dep’t 1996). A party acts to the exclusion of the rights of another by exercising dominion and control over the property that is inconsistent with the interests of the true owner. Shaw v. Rolex Watch, U.S.A., Inc., 673 F.Supp. 674, 682 (S.D.N.Y.1987). Accepting this definition of conversion, the decisive issue is when Bearsville began unauthorized possession of the master recordings. Bearsville undeniably had lawful and authorized possession of the; master tapes when they were first transferred to its predecessor in 1972. In August 1986, the master recordings were licensed by Bearsville *223 to Rounder Records. The result of this agreement was the 1987 release of an album of Byrd’s music taken from the master recordings. This licensing agreement clearly demonstrated Bearsville’s intent to exercise control over the Byrd recordings to the exclusion of Songbyrd. See Jaywyn Video Productions, Ltd. v. Servicing All Media, Inc., 179 A.D.2d 397, 577 N.Y.S.2d 847, 848 (1st Dep’t 1992) (licensing of property rights demonstrates exercise of dominion and control). Any claim for conversion, therefore, accrued no later than August 1986 and was time barred at the time this action was filed in 1995. <a class="footnote" href="#fn4" id="fn4_ref"> 4 </a> That Songbyrd may not have known of the conversion at the time it occurred is of no moment. Two Clinton Square Corp. v. Friedler, 91 A.D.2d 1193, 459 N.Y.S.2d 179 (4th Dep’t 1983); Memorial Hosp. v. McGreevy, 152 Misc.2d 127, 574 N.Y.S.2d 923, 925 (1991) (claim accrues at time of conversion “even though the plaintiff may have been unaware of the occurrence.”). <a class="footnote" href="#fn5" id="fn5_ref"> 5 </a> Where, as here, “[t]he conduct of the defendant certainly constituted a denial of both the plaintiffs right to the master recording and a total usurping of plaintiffs right to possess the master recording,” the claim is properly stated as one for conversion. Sporn, 462 N.Y.S.2d at 416, 448 N.E.2d 1324. That claim is clearly untimely. The time bar arose in August 1989, three years following the licensing agreement with Rounder Records. <a class="footnote" href="#fn6" id="fn6_ref"> 6 </a> Conversion is not a continuing wrong for which every new act that might constitute conversion restarts a new limitations period. Tinker v. Abrams, 640 F.Supp. 229, 232 (S.D.N.Y.1986) (citing Sporn, 462 N.Y.S.2d at 415-16, 448 N.E.2d 1324). Here, Songbyrd simply failed to commence this action within the applicable statute of limitations. Bears-ville’s motion must, therefore, be granted. V. Conclusion WHEREFORE, for the reasons set forth above, it is hereby ORDERED that the defendant’s motion for summary judgment is GRANTED; and IT IS FURTHER ORDERED that the Clerk of the Court serve a copy of this order, by regular mail, upon all parties to this action. IT IS SO ORDERED. <div class="footnotes"><div class="footnote" id="fn1" label="1"> <a class="footnote" href="#fn1_ref"> 1 </a> . The undisputed facts of this matter, including its musical background and context, are detailed in an earlier opinion from the Fifth Circuit Court of Appeals. See Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 774-75 (5th Cir.1997). </div><div class="footnote" id="fn2" label="2"> <a class="footnote" href="#fn2_ref"> 2 </a> . Songbyrd incorporated in 1993 and conducts business as a successor in interest to Byrd. </div><div class="footnote" id="fn3" label="3"> <a class="footnote" href="#fn3_ref"> 3 </a> . The period of prescription in civil law jurisdictions like Louisiana is roughly synonymous with the common law concept of a statute of limitations. See FDIC v. Barton, 96 F.3d 128, 131 n. 2 (5th Cir.1996). </div><div class="footnote" id="fn4" label="4"> <a class="footnote" href="#fn4_ref"> 4 </a> . Songbyrd has not argued that any tolling provision applies here. </div><div class="footnote" id="fn5" label="5"> <a class="footnote" href="#fn5_ref"> 5 </a> . Songbyrd’s assertion that the decision from the Fifth Circuit precludes consideration of the licensing agreement's effect on the statute of limitations is misplaced. That decision concerned Louisiana law, not the New York law applicable here. </div><div class="footnote" id="fn6" label="6"> <a class="footnote" href="#fn6_ref"> 6 </a> . In the alternative the conversion occurred no later than August 1991 when Bearsville licensed the master recordings to Rhino Records. That agreement resulted in the 1991 Rhino Records release of an album containing seven tracks produced from the master recordings. The exact date of the Rhino Records licensing deal is not clear in the record but necessarily occurred in or before 1991. Thus, with 1991 as the date of conversion, Songbyrd’s claim was time barred prior to the commencement of this action in 1995. </div></div></opinion>

Conversion is the "unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights."

The statute of limitations for conversion begins to run when the property is wrongfully taken (converted) and the owner dispossessed of the property.

—the successor in interest to musician Henry Byrd filed an action in conversion, claiming that recordings by Byrd had been used illegally. But the trial court found that the defendant had adversely possessed the recordings, noting that the plaintiff “simply failed to commence this action within the applicable statute of limitations

Unless the defendant purchased the property in good faith (and Defendants admit they did not, Defs.'Opp'n at 9-11), the true owner can sue for conversion when the party in "unauthorized possession" of his property "act [s] to exclude [the owner's] rights... by exercising dominion and control over the property that is inconsistent with [the owner's] interests."

Guggenheim did not apply; the statute began to run when Bearsville converted the recordings because there was no evidence that Bearsville was a good-faith purchaser.

Magistrate Judge Homer ruled that (1) New York law applied because the ground for the transfer was that the Louisiana District Court lacked personal jurisdiction over the Estate,(2) the pertinent limitations period was New York's three-year limitations period for conversion and recovery of chattels, see NYCPLR 214 (3)(McKinney 1990),(3) SongByrd's action accrued no …

But if the statute of limitations to recover possession has run, the subsequent possessor may have acquired a superior interest through adverse possession.

Thus, since the conversion occurred in 1986, and Songbyrd didn't file suit until 1995, Judge Homer held that the case was barred by the statute of limitations.

Conversion is not a continuing wrong for which every new act that might constitute conversion restarts a new limitations period

In the wake of a sua sponte transfer by the Eastern District of Louisiana, the US District Court for the Northern District of New York and the US Court of Appeals for the Second Circuit make their own Erie determinations

Yes. The statute of limitations for a conversion claim accrues at the moment of conversion, which is established when a party in unauthorized possession acts to exclude the rights of the true owner. The court reasoned that New York law applies because the case was transferred from a court that lacked personal jurisdiction. Under New York's three-year statute of limitations for conversion, the claim accrues at the time of the wrongful act. The court distinguished this case from Solomon R. Guggenheim Found. v. Lubell, which applies a 'demand and refusal' rule for claims against good-faith purchasers. Because Bearsville was the alleged wrongful possessor, not a good-faith purchaser, the rule from Sporn v. MCA Records applies, which starts the limitations period at the moment of conversion. Bearsville's act of licensing the master tapes to Rounder Records in August 1986 was an exercise of dominion and control inconsistent with the owner's rights, constituting a conversion. Therefore, the three-year statute of limitations began in August 1986 and expired in August 1989, barring the claim filed in 1995. The owner's lack of knowledge of the conversion does not toll the statute.

Yes, the statute of limitations for Songbyrd's conversion claim began to run at the time Bearsville exercised unauthorized control over the master recordings, which was no later than August 1986 when Bearsville licensed the recordings to Rounder Records. The claim is time-barred because the action was filed in 1995, well beyond the three-year statute of limitations period for conversion claims under New York law. 

The court rejected Songbyrd's argument that the statute of limitations did not begin to run until after a demand for return was refused, based on Solomon R. Guggenheim Found. v. Lubell. The Guggenheim case applies to good-faith purchasers, whereas here, Bearsville was not a good-faith purchaser and had remained in possession of the recordings since the alleged wrongful taking. 

The licensing agreements with Rounder Records in 1986 and Rhino Records in 1991 clearly demonstrated Bearsville's intent to exercise control over the recordings to the exclusion of Songbyrd's rights. This constituted conversion, and the statute of limitations began to run at that time, even if Songbyrd was unaware of the conversion. 

Conversion is not a continuing wrong for which each new act restarts the limitations period. Songbyrd failed to commence the action within the applicable three-year statute of limitations after the claim accrued in August 1986. Therefore, the court granted Bearsville's motion for summary judgment.

Songbyrd, Inc. v. Estate of Grossman

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