Free Motion to Withdraw - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. Jordan Green (No. 001860) Lawrence 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' MOTION TO WITHDRAW S 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
P ROF E S S I O N A L C O R P O R A T I O N P HOENIX

Avnet moves, pursuant to Rule 36(b), Fed. R. Civ. P., to withdraw its admissions to Requests to Admit Nos. 15 and 43 of the Plaintiff' Third Request for Admissions and s enter a denial of these Requests. Entry of such an Order will promote resolution of the merits. Entry of such an Order will not prejudice Mr. Coogan in maintaining his claim. FACTS Avnet admitted Request Nos. 15 and 43. When discovery was closing, Plaintiff demanded Avnet supplement its disclosure pursuant to Rule 26 and, in particular, demanded supplementation of Interrogatory No. 4. (See letters dated February 14, In response to its

February 22, and February 28, 2006, attached hereto Exhibit A)
1785119.1/12444.027

Case 2:04-cv-00621-SRB

Document 191

Filed 04/17/2006

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

obligations under Rule 26 and in response to Plaintiff' demand, Avnet undertook a s review of its Answers to Interrogatory No. 4 and the facts in support of those answers. To the extent that new or different information was discovered, Avnet supplied the information. The information concerning the use of a copywritten photograph without the consent of Plaintiff on the homepage of Avnet' website is one of the facts learned by s Avnet in the course of this review. Permitting withdrawal or amended of responses to requests to admit is governed by Rule 36(b), Fed. R. Civ. P. The Rule, in applicable part, says: Subject to the provision of Rule 16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. Permitting Avnet to amend its responses to the two Requests to Admit will advance the decision on the merits. Avnet has admitted infringing Plaintiff' copyrighted s

photographs. On this issue, the question is one of damages. Use on the homepage of the website is a more valuable use than placing the photograph in some other position on a website. The second part of the test for permitting amendment of requests to admit concerns prejudice. It will be difficult for Plaintiff to demonstrate "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). See also, Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995). This is so because Avnet is the only source of information on the subject of when the photograph was used on the homepage and when it was not. This is not a circumstances where a request for withdrawal is made in the middle of trial (see, Hadley at 1348) or where Plaintiff will be unable to find the evidence required to prove the issue at trial (as described in Upchurch at 133).
1785119.1/12444.027

Case 2:04-cv-00621-SRB

Document 191 2 Filed 04/17/2006

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

CONCLUSION Permitting Avnet to amend its Responses to Request to Admit Nos. 15 and 43 of Plaintiff' Third Request for Admissions would promote a decision on the merits. s Permitting amendment will not prejudice Plaintiff. Avnet requests the Court permit it to amend its Responses by denying Request to Admit Nos. 15 and 43 of Plaintiff' Third s Request for Admissions. Respectfully submitted this 17th day of April, 2006. FENNEMORE CRAIG, P.C.

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

CERTIFICATE OF SERVICE I hereby certify that on April 17, 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/Jordan Green
1785119.1/12444.027

Case 2:04-cv-00621-SRB

Document 191 3 Filed 04/17/2006

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