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

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MESCHKOW & GRESHAM, P.L.C.
Jordan M. Meschkow (AZ Bar No. 007454) Lowell W. Gresham (AZ Bar No. 009702) 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 (602) 274-6996 (602) 274-6970 (facsimile) Email: [email protected] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as COOGAN PHOTOGRAPHIC, Plaintiff, v. AVNET, INC., ROY VALLEE and CINDY VALLEE, husband and wife, and AL MAAG and MICHAELLE MAAG, husband and wife, Defendants. Plaintiff Dan Coogan ("Coogan") submits the following Reply in support of his Motion for Clarification. The Court should grant Coogan's Motion clarifying that Case No.: CV-04-0621 PHX SRB

PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLARIFICATION

summary judgment was not granted to Defendants on the issue of how many works were infringed in this case because the Court never had an opportunity to view the facts in the light most favorable to Coogan. While Defendants' Response valiantly attempts to

confuse the issue, it offers no sound argument for denying Coogan's Motion. Plaintiff supports this Reply with the following Memorandum of Points and Authorities, and all matters of record, all of which are incorporated herein by this reference.

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MEMORANDUM OF POINTS AND AUTHORITIES Defendants offer three reasons that Coogan's Motion should not be granted, each of which is addressed in turn below, and all of which fall flat. I. THE STANDARD FOR SUMMARY JUDGMENT IS WELL-KNOWN AND WAS NOT MISSTATED BY COOGAN. First, the standard for summary judgment is well-understood in the legal community; Coogan would not even attempt to misstate it. That standard is, as cited in Coogan's Motion and again as follows, "On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1138 (9th Cir. 2001) ("[W]e must determine whether the evidence, when viewed in a light most favorable to the nonmoving party, raises any genuine issues of material fact . . . ."). Similarly, Coogan does not dispute this standard as cited by Defendants: " . . . it is the Court who has a duty, in ruling upon motions for summary judgment, to determine whether the evidence, when viewed in a light most favorable to the non-movant, raises any genuine issue of material fact." Response at 2 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). Defendants completely misunderstand Coogan's argument and seem to believe that Coogan was arguing some kind of distinction between the non-movant and the Court. This was not, however, Coogan's argument. No one disputes that the Court, in ruling on summary judgment, must view the facts in a light most favorable to the non-moving party. Id. Those facts must, however, somehow be presented to the Court. In other words, Anderson's reference to a "non-movant" suggests that there must be a "movant" to present such facts, and Defendants did not move for summary judgment in this case. Whether an actual cross-motion was ever filed or not, however, the Court still has its duty to view the facts in the light most favorable to Coogan if it is going to grant summary judgment to

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Defendants. Coogan's argument, as to the issue of the number of works involved, is simply that the Court never had such an opportunity, because the facts on this issue were never presented to the Court in the light most favorable to Coogan. Thus, summary judgment on this one issue against Coogan is inappropriate. II. WHILE COOGAN DOES NOT ARGUE THAT THE COURT'S OCTOBER 24, 2005 ORDER WAS "AMBIGUOUS", COOGAN BELIEVES THIS POINT OF LAW MUST BE CLARIFIED. Defendants quote this Court's order to show that the Order was clearly written, another assertion that Coogan does not dispute. Coogan does believe, however, that the Order raised a question of law that must be clarified, i.e., whether a Court can grant summary judgment to a party that has not moved for summary judgment in a situation where the facts have never been presented to the Court in a light most favorable to the party against whom summary judgment is granted. Again, Defendants' argument attempts to needlessly confuse the issue. III. THIS COURT'S DISCRETION TO ENTER PARTIAL SUMMARY JUDGMENT, WHICH IS NOT QUESTIONED BY COOGAN, IS IRRELEVANT TO THIS ARGUMENT.

Contrary to Defendants' assertions, Plaintiff did not claim that this Court "lacked the authority to rule as a matter of law that the photographs constituted only one work . . ." Response at 3. Without question this Court has such authority; however, the Court must have the necessary information before it in order to make such rulings. Defendants also falsely state that the Court's Order removed "from the litigation an issue that was not legitimately in controversy." Response at 3. Nothing could be further from the truth. The issue of the number of infringed works in this case is very much in controversy. Moreover, Coogan has a significant amount of factual evidence, including evidence of the separate marketing and revenue arising from each of the separate works, that has never been presented to this Court. Defendants go on to argue another uncontested point: that this Court has the authority and discretion to rule on the issue of the number of infringed works, and that

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such a ruling is a legal issue, not a factual one, that is appropriate for summary judgment. Again, Coogan does not disagree. The simple and well-understood point that Defendants omit, however, is that in order to make that legal ruling, any Court must have before it the facts presented in a light most favorable to Coogan. This Court did not have such information before it. Lastly, Defendants argue that Coogan set forth "no authority supporting his position." Response at 4. First, this statement is untrue and, in fact, the most important authority cited by Coogan is the authority cited herein setting forth the standard for summary judgment, which is the only real issue here. Second, Defendants factually distinguish Coogan's citation of Commonwealth of the Northern Mariana Islands v. United States, 399 F.3d 1057, 1060 (9th Cir. 2005). Coogan, however, does not dispute that Commonwealth is factually distinguishable; Coogan cited the case only to show another example of the summary judgment standard being applied, not to show analogous facts. Every summary judgment case that Coogan found either granted or denied a party's motion for summary judgment; Coogan found no cases where only one party moved for summary judgment and summary judgment was granted affirmatively to the other side rather than merely being denied to the moving party. And Coogan notes that Defendants also were unable to find such a case: Defendants cite no cases in any jurisdiction where only one party moved for summary judgment and summary judgment was granted affirmatively to the other side rather than merely being denied. Coogan, therefore, submits that no cases likely exist because such a ruling would run afoul of the summary judgment standard. Coogan's Motion for Clarification, therefore, must be granted. IV. CONCLUSION For the foregoing reasons, and as set forth in Coogan's Motion, Coogan respectfully requests that this Court clarify its October 24, 2005 Order by stating that, while summary judgment on the issue of whether one or three works exist in this case was

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denied to Coogan, summary judgment was not granted in favor of Defendants. Therefore, the issue of whether one or three works existed in this case remains undetermined.

Dated this 30th day of November, 2005 By:/s Jordan M. Meschkow Jordan M. Meschkow Lowell W. Gresham MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818

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Case 2:04-cv-00621-SRB 8050-0131-02-110

CERTIFICATE OF SERVICE I hereby certify that on 30 November 2005 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Greene and Charles Houston FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants I also hereby certify that on 30 November 2005 a hand-delivered copy of this was sent for hand-delivery to the Judge's chambers. /s Jordan M. Meschkow

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