Free Reply to Response to Motion - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. Jordan Green (No. 001860) Lawrence E. Palles (No. 020263) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, No. CV2004-0621 PHX SRB

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v.
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AVNET, INC., a foreign corporation, Roy Vallee and Jane Doe Vallee, husband and wife; and ALLEN MAAG and JANE DOE MAAG, husband and wife, Defendants.

AVNET' REPLY IN SUPPORT OF ITS S MOTION TO WITHDRAW ADMISSION AND TO ENTER DENIALS AS TO REQUEST TO ADMIT NOS. 15 AND 43 OF AVNET' RESPONSES TO S PLAINTIFF' THIRD REQUESTS FOR S ADMISSIONS

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

The Court should allow Avnet to withdraw or amend its admissions to Requests to Admit Nos. 15 and 43 because it will allow the Court to determine the amount of Plaintiff' alleged damages based on the facts rather than erroneous admissions and s Plaintiff has failed to demonstrate that his ability to prove his case will be prejudiced. Pursuant to Fed. R. Civ. P. Rule 36(b), the Court may permit withdrawal or amendment of an admission provided two requirements are met: (1) it will allow for presentation of the merits of the action, and (2) the party who obtained the admission will not be prejudiced by the withdrawal. Sonoda v. Cabrera, 255 F.3d 1035, 1039 (9th Cir. 2001); Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995). The party opposing
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withdrawal or amendment has the burden of proving that he would suffer prejudice. Id. To demonstrate prejudice, the party opposing the withdrawal must show that his ability to prove his case will be significantly impaired. Id. "The prejudice contemplated by Rule 36(b) is ` simply that the party who obtained the admission will now have to convince not the fact finder of its truth. Rather, it relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence' with respect to the questions previously deemed admitted." Hadley, 45 F.3d at 1348. A less restrictive standard is applied when the withdrawal or amendment is Once trial begins, a more restrictive standard is to sought prior to trial. Id. at 1348-49 ("` be applied in permitting a party to withdraw' an admission, especially when the other party has ` relied heavily' on the admission."). In this case, both factors weigh in favor of permitting Avnet to withdraw or amend the erroneous admissions. There is no dispute as to liability in this case. The only issue for trial is the amount of Plaintiff' damages. s Avnet simply seeks to correct the

admissions to accurately reflect the facts regarding one infringing use of one of Plaintiff's photographs. Admissions 15 and 43 inaccurately indicate that one of Plaintiff's

photographs was posted on the homepage at Avnet.com during 2002. Avnet admits that the subject photograph was posted on a secondary page at Avnet.com during 2002. However, the photograph was not posted on the homepage until January 2004. Avnet should be permitted to correct the record so that any damages awarded for that use can be accurately computed by the Court based on the actual infringing use. Plaintiff has failed to demonstrate that he will be prejudiced by the withdrawal of the admissions prior to trial. See, e.g., Sonoda, 255 F.3d at 1039 (affirming trial court' s decision to allow withdrawal of admissions before trial); Hadley, 45 F.3d at 1348-50. In Hadley, the 9th Circuit held that denial of by denying the defendant' pre-trial motion to s withdraw admissions was an abuse of discretion because the plaintiff failed to
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demonstrate that withdrawal of the admissions would prejudice its case. 45 F.3d at 1350. The plaintiff argued that it would be prejudiced because, but for the admissions, it would have more vigorously cross-examined the defendant on several issues and engaged in more extensive trial preparation. Id. at 1349. Acknowledging that the plaintiff may have suffered some inconvenience, the court rejected the plaintiff' argument because the s motion was filed prior to trial and the plaintiff had the opportunity to cross-examine the defendant at trial. Id. The court distinguished the plaintiff' argument from cases where s the motions to withdraw were filed during trial and the opposing party demonstrated a much higher level of reliance on the admissions. Id. Withdrawal or amendment of the admissions more than two months prior to trial will not prejudice Plaintiff' ability to prove his damages claim. The admissions at issue s relate to only one of the 77 alleged infringing uses. The parties agree that use on the homepage of the website is a more valuable use than placement on a secondary page. However, the difference in value between the two uses amounts to less than .002% of Plaintiff' entire claim for actual damages. 1 Plaintiff cannot argue reasonably that the s need to adjust his damages computation will cause him prejudice. As demonstrated above, the computation of the difference in valuation, using his expert' data, is s elementary. Plaintiff has not demonstrated that he will have "special difficulties in obtaining the evidence required to prove the matter admitted." Upchurch v. Ustnet, Inc., 160 F.R.D. 131, 133 (D. Oregon 1995). As noted in Plaintiff' Response, Avnet is the only source of s information regarding when the photograph was used on the homepage and when it was
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Plaintiff' expert, Jeff Sedlik, opined that Plaintiff' total actual damages from 77 s s alleged infringing uses is $795,423.60. See Addendum B of Supplementary Expert Report of Jeff Sedlik. Mr. Sedlik computed the value for the use on the Avnet.com homepage at $375 per month. Id. He computed the value for use of the same photograph on a secondary page at $260 per month, a difference of $115. Id. The difference between Mr. Sedlik' valuations for the two uses over the relevant time period, 12 months, totals s $1,380, less than .002% of his valuation of Plaintiff' total actual damages. s
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not. See Response at p. 7. Therefore, further depositions or written discovery will not yield additional evidence on this issue. In any event, Plaintiff will have the opportunity to cross-examine Avnet' employees at trial. s CONCLUSION Permitting Avnet to amend its Responses to Request to Admit Nos. 15 and 43 of Plaintiff' Third Request for Admissions would permit a decision on the merits. s Permitting amendment will not prejudice Plaintiff. Therefore, Avnet requests the Court allow it to amend its Responses to correct the erroneous admissions. Respectfully submitted this 12th day of May, 2006. FENNEMORE CRAIG, P.C.

By s/ Lawrence E. Palles Jordan Green Lawrence E. Palles Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

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CERTIFICATE OF SERVICE I hereby certify that on May 12, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Meschkow, Esq. Meschkow & Gresham, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 Nancy Giles, Esq. Giles Legal PLC 733 W. Willetta Street Phoenix, Arizona 85007

s/ Lawrence E. Palles
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

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