Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11

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

12

v.
13 14 15 16

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.

DEFENDANTS'RESPONSE TO PLAINTIFF' MOTION IN LIMINE TO S EXCLUDE ASSERTIONS BY DEFENDANTS CONTRARY TO PRIOR ADMISSIONS

17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C.
P HOENIX

Defendants Avnet, Inc., the Vallees, and the Maags oppose Plaintiff' Motion in s Limine. Avnet' opposition is based on its contemporaneously filed Motion, pursuant to s Rule 36(b), Fed. R. Civ. P., to withdraw its answers to Requests to Admit Nos. 15 and 43 and to permit it to deny those requests. The Vallees and the Maags oppose the Motion because the Requests to Admit were directed to Avnet and not to them and are therefore not binding on them. THE VALLEE AND MAAG DEFENDANTS The Requests to Admit subject of Plaintiff' Motion in Limine were addressed to s Avnet, Inc.. Requests to admit are binding only upon the party to whom they are addressed and not binding on co-defendants. Castiglione v. The United States Life Ins. Co. in the City of New York, 262 F. Supp. 2d 1025 (D. Ariz. 2003).
1785088.1/12444.027

Case 2:04-cv-00621-SRB

Document 190

Filed 04/17/2006

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

AVNET The Motion in Limine deals with one part of one use of several infringing uses of Plaintiff' photographs. s There is no dispute by Avnet that it used a copyrighted

photograph without Plaintiff' permission on its website. It is also undisputed that, for a s time, the photograph was on the homepage of the website. The issue here concerns the question whether, as earlier admitted by Avnet, the photograph had been on the homepage for two years or as described in the Second Supplemental Response to Interrogatory No. 4 on the home page for a period of one month. Partly in response to the obligation under Rule 26 to supplement discovery answers when new information is obtained and partly at the request of Plaintiff who demanded a supplementation to Interrogatory No. 4 (see letters dated February 14, February 22, and February 28, 2006, attached hereto Exhibit 1), Avnet undertook a review of its earlier interrogatory answers. To the extent that it found new and different information, it provided that information in its Second Supplemental Response.1 One of the facts

determined by Avnet was the date when the photograph was first used on the homepage of its website and the date when it was removed. Contemporaneously with this Response, Avnet seeks leave to withdraw its admissions and enter denials. 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

1

28
FENNEMORE CRAIG, P.C.
P HOENIX

While Plaintiff contends that the Interrogatory was not verified by Avnet, it was verified on March 31, 2006. See Verification attached as Exhibit 2.
1785088.1/12444.027

Case 2:04-cv-00621-SRB

Document 190 2 Filed 04/17/2006

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11

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
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FENNEMORE CRAIG, P.C.
P HOENIX

1785088.1/12444.027

Case 2:04-cv-00621-SRB

Document 190 3 Filed 04/17/2006

Page 3 of 3