Free Response in Support of Motion - District Court of California - California

Case 3:07-cv-02310-LAB-AJB

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1 SULLIVAN, HILL, LEWIN, REZ & ENGEL A Professional Law Corporation 2 Jeffrey D. Lewin, SBN 68202 Barton L. Jacka, SBN 154116 3 550 West "C" Street, Suite 1500 San Diego, California 92101 4 Telephone: (619) 233-4100 Fax Number: (619) 231-4372 5 Attorneys for Defendant, 6 Creative Urethane Concepts, Inc. 7 8 9 10 PROLINE CONCRETE TOOLS, INC., a 11 California Corporation, 12 13 v. 14 GORD DENNIS, an individual; CADILLAC CONCRETE PRODUCTS, 15 LTD., an unknown business form located in British Columbia, Canada; CREATIVE 16 URETHANE CONCEPTS, INC., a South Carolina Corporation; CLYDE COBB, an 17 individual; UNIVERSAL BUILDING PRODUCTS, INC., an Illinois 18 Corporation; LEGACY DECORATIVE CONCRETE SYSTEMS, INC., an Illinois 19 Corporation; STEPHEN JOHNSON, an individual; CHARLES KREUTZER, an 20 individual; SOLOMON COLORS, INC., an Illinois Corporation; RICHARD 21 SOLOMON, an individual; GINA SOLOMON, an individual; and DOES 1 22 through 20, inclusive, 23 24 25 / / / 26 / / / 27 / / / 28 / / /
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3:07-cv-2310-LAB (AJB) REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF CREATIVE URETHANE CONCEPTS, INC. UNDER F.R.C.P., RULE 12(E) FOR A MORE DEFINITE STATEMENT Judge: The Hon. Larry Alan Burns Courtroom: 9 Hearing Date: July 21, 2008 Time: 11:15 a.m.

Plaintiff,

Defendants.

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REPLY MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Proline Concrete Tools, Inc. ("Proline") fails to provide the slightest factual or legal

5 justification for its continued refusal to disclose anything about the "decorative concrete stamps" at 6 issue in this case that would give Creative Urethane Concepts, Inc. ("CUC") some inkling into what 7 it is alleged to have wrongfully copied. Instead, Proline argues that the rule articulated in one of the 8 four cases on which CUC relies for the proposition that a plaintiff must "allege ... which specific 9 original works are the subject of the copyright claim" is "pure dictum." Proline is not only wrong 10 about the particular case, but also is wrong about the underlying rule: if Proline is going to sue for 11 copyright infringement, it has an obligation to allege which specific works were copied. Proline's 12 failure to include this basic information in its complaint deprives CUC of the ability reasonably to 13 respond. 14 This Court should order Proline to amend its amended complaint to provide a more definite

15 statement. 16 17 18 II. ARGUMENT As Proline points out, this Court stated in Four Navy Seals v. Associated Press, 413 F.Supp.

19 2d 1136, 1148 (S.D. Cal. 2005): "Some courts have interpreted Rule 8(a)(2) as requiring that the 20 complaint state which particular work is the subject of a copyright claim" (emphasis added; citing 21 Gee v. CBS, Inc., 471 F.Supp. 600, 643 (E.D.Pa. 1979); and Bespaq Corp. v. Haoshen Trading Co., 22 2005 WL 14841 (N.D. Cal. 2005)). Proline argues that this Court's use of the words "[s]ome 23 courts" renders as "pure dictum" the statement: "requiring that the complaint state which particular 24 work is the subject of a copyright claim." 25 This argument would be more persuasive if, immediately following this sentence, this Court

26 had not granted defendants' motion for a more definite statement precisely on these grounds: 27 / / / 28 / / /
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Plaintiffs have not clearly pleaded the first element of infringement, ownership of a valid copyright. Merely asserting that, of 1800 photographs in Jane Doe's "smugmug" account, at least one unidentified photograph has been copyrighted by an unidentified "NAVY SEAL ONE" [note] and was distributed by Defendants does not put Defendants or the court on sufficient notice of the copyright claim. The Complaint does not identify exactly which works Defendants infringed, and Plaintiffs have not indicated when the works were registered. Defendants' implied motion to compel a more definite statement is GRANTED. Plaintiffs may amend their Complaint to clarify the allegations concerning the copyrighted items, pursuant to Federal Rule of Civil Procedure 12(e).

10 Id. (emphasis added). 11 It also is quite true, as Proline points out, that the complaint at issue in Four Navy Seals,

12 supra, alleged that one plaintiff had an account containing 1800 photographs, that one unidentified 13 photograph was copyrighted by another plaintiff and that that copyrighted photograph was 14 wrongfully copied. Id. Proline, of course, does not allege that it has 1800 concrete decorative 15 stamps, that one was copyrighted and that the copyrighted one was wrongfully copied. 16 No, Proline does not provide any numbers at all. One cannot determine from the amended

17 complaint whether Proline has copyrighted 2, 1800 or 4000 concrete decorative stamps or whether 18 CUC is alleged to have infringed on Proline's copyright to 1 or every single one of them. 19 Further, Proline does not address any of the other cases on which CUC relies: Kelly v. L.L.

20 Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992); Gee v. CBS, Inc., 471 F.Supp. 600, 643 (E.D.Penn. 21 1979) (plaintiff was required to allege which songs were wrongfully copied, not just that songs 22 authored by decedent during a particular period were wrongfully copied); and Franklin Electronic 23 Publishers, Inc. v. Unisonic Products Corp., 763 F.Supp. 1 (S.D.N.Y. 1991) - each of which supports 24 the rule set forth in Four Navy Seals, supra. 25 Without knowing what it allegedly wrongfully copied, CUC - assuming for the sake of

26 argument that it has sold stamps that resemble Proline's - cannot determine whether it has any 27 affirmative defenses or what they might be. For that matter, CUC has no way of knowing whether 28 what it considers to be a "concrete decorative stamp" is the same thing that Proline considers to be a ::ODMA\PCDOCS\PCDOCS\286211\1 3 Case No. 3:07-cv-2310-LAB (AJB)
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1 "concrete decorative stamp." Finally, as CUC has already pointed out, the allegations of the 2 amended complaint are insufficient to allow CUC to obtain the needed information from the 3 Copyright Office or to determine the scope of its disclosure requirements under Rule 26 of the 4 Federal Rules of Civil Procedure. 5 6 7 III. CONCLUSION CUC respectfully requests that this Court order Proline to amend the amended complaint to

8 provide sufficient information about the "decorative concrete stamps" at issue (facsimile, photograph 9 or copy of Proline's alleged application for registration) so that CUC can reasonably determine what 10 it is Proline alleges CUC wrongfully copied. 11 12 Dated: 13 14 By: 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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July 11, 2008

SULLIVAN, HILL, LEWIN, REZ & ENGEL A Professional Law Corporation

/s/ Barton L. Jacka Barton L. Jacka Attorneys for Defendant Creative Urethane Concepts, Inc.

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1 Proline Concrete Tools, Inc. v. Gord Dennis, et al. USDC - Southern District Case No. 37-cv-02310-LAB-AJB 2 PROOF OF SERVICE 3 I am employed in the City and County of San Diego by the law firm of Sullivan Hill Lewin 4 Rez & Engel, 550 West C Street, Suite 1500, San Diego, California 92101. I am over the age of 18 5 and not a party to this action. 6 On July 11, 2008, I served the attached document(s): 7 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 8 MOTION OF CREATIVE URETHANE CONCEPTS, INC. UNDER F.R.C.P., RULE 12(E) FOR A MORE DEFINITE STATEMENT 9 on the parties, through their attorneys of record, by placing copies thereof in sealed envelopes 10 (except for facsimile transmission), addressed as shown below, for service as designated below: 11 A. BY U.S. MAIL. I am readily familiar with Sullivan, Hill, Lewin, Rez & Engel's practice of 12 collection and processing correspondence for mailing. Under that practice, documents are deposited with the U.S. Postal Service on the same day which is stated in the proof of 13 service, with postage fully prepaid at San Diego, California in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if the postal 14 cancellation date or postage meter date is more than one day after the date stated in this proof of service. 15 B. BY FACSIMILE machine pursuant to Rule 2008(e). The recipient's name and fax number 16 that I used are as shown below. The facsimile machine that I used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2008(e)(4), a 17 transmission report was properly issued by the transmitting facsimile machine. 18 C. 19 20 21 22 D. 23 24 25 26 E. 27 28
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OVERNITE EXPRESS. I caused such envelopes to be deposited in the Overnite Express Drop Box at San Diego, California. I am personally and readily familiar with the business practice of this office for collection and processing correspondence for Overnite Express mailing. Under that practice it would be dropped in the drop box for the Overnite Express Service on that same day at San Diego, California in the ordinary course of business. FEDERAL EXPRESS. I caused such envelopes to be deposited in the Federal Express Drop Box at San Diego, California. I am personally and readily familiar with the business practice of this office for collection and processing correspondence for Federal Express mailing. Under that practice it would be dropped in the drop box for the Federal Express Service on that same day at San Diego, California in the ordinary course of business. BY PERSONAL SERVICE. I delivered such envelope by hand to the offices of the addressee.

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PROOF OF SERVICE

Case No. Gord Dennis

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SERVICE A

ADDRESSEE Tory M. Pankopf Law Offices of Tory M. Pankopf 611 Sierra Rose Drive Reno, NV 89511 Tel: 530-725-8263 Fax: 530-725-8264 Gregor A. Hensrude Greg A. Garbacz Klinedinst Attorneys At Law 501 West Broadway, Suite 600 San Diego, CA 92101 Tel: 619-239-8131, ext. 2283 Fax: 619-238-8707 Keith J. Grady Robert S. Kenney Polsinelli, Shalton, Flanigan, Suelthaus PC 100 South Fourth Street, Suite 1100 St. Louis, MO 63102 Tel: 314-889-8000 Fax: 314-727-7166

PARTY Attorney for Plaintiff, Proline Concrete Tools, Inc.

A

Attorney for Defendants, Legacy Decorative Concrete Systems, Inc. and Solomon Colors, Inc.

A

Attorney for Defendants, Legacy Decorative Concrete Systems, Inc. and Solomon Colors, Inc.

I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on July 11, 2008 at San Diego, California.

/s/ Rosette M.F. Tyner Rosette M.F. Tyner

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PROOF OF SERVICE

Case No. Gord Dennis