Free Response to Motion - District Court of Arizona - Arizona

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

FENNEMORE CRAIG Jordan Green (No. 001860) Charles Houston (No. 020844) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] 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, v. 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. Plaintiff' Motion for Clarification should be denied because: (1) plaintiff misstates s the standard for summary judgment motions; (2) the Court' ruling was not ambiguous s and requires no clarification; and (3) this Court has the discretion to enter partial summary judgment rulings on issues which shape the litigation, even in the absence of an affirmative motion or cross-motion on such issues. Accordingly, the Avnet defendants (collectively "Avnet") respectfully urge the Court to deny plaintiff' Motion for s Clarification and leave its October 24, 2005 Order unchanged. /// ///
1735475/12444.027

No. CV2004-0621 PHX SRB

RESPONSE TO MOTION FOR CLARIFICATION (Assigned to The Hon. Susan R. Bolton)

Case 2:04-cv-00621-SRB

Document 107

Filed 11/22/2005

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

LEGAL ARGUMENT I. Plaintiff Misstates the Standard for Summary Judgment Motions. Plaintiff claims that parties have a duty to file motions for summary judgment that present the facts in a light most favorable to the opposing party. Plaintiff' Motion at 2. s Plaintiff has either misstated or misunderstood the burden of a party moving for summary judgment. In fact, 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. Inc., 477 U.S. 242, 247-48 (1986). II. The Court' October 24 Order Was and Unambiguous and Within Its s Discretion. A. The Court' Order Was Clear s Plaintiff attempts to inject an element of uncertainty where none exists when he writes that "... the Court appeared to rule that, not only did Coogan fail to show three works, but that summary judgment would be affirmatively granted to Defendants (the non-moving party) that only one work existed." (Bold emphasis added) (italics in original). Id. at 2. Plaintiff' claim that the Court only "appeared to rule" against him on s the number of works issue is inaccurate and fails to consider the language in the Court' s Order: As Defendants' brief points out, just as "Mickey is still Mickey whether he is smiling or frowning, running or walking, waving his left hand or is right," "Roy Vallee is still Roy Vallee whether he is sitting, standing or looking out the window." As such, the Court concludes that all of the Vallee photographs constitute a single "work" within the meaning of 17 U.S.C. § 504(c)(1). Order at 11 (emphasis added). /// ///
1735475/12444.027

Anderson v. Liberty Lobby,

Case 2:04-cv-00621-SRB

Document 107- 2 - Filed 11/22/2005

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

This Court removed all doubts about the impact of its ruling when it wrote: As a matter of law, the Vallee photographs constitute one "work" within the meaning of 17 U.S.C. § 504(c)(1). Id. at 14. B. The Court Acted Within Its Discretion

Plaintiff' claim that this Court lacked the authority to rule as a matter of law that s the photographs constituted only one work ignores the well-established principle that s courts may make partial summary judgment rulings to shape the litigation. See Moore' Federal Practice, 3rd Ed., § 56.40[2]; see also Fed. R. Civ. P. 56(d). Indeed, Fed. R. Civ. P. 56(d) specifically authorizes the type of ruling issued by this Court. "[The court] shall [upon a motion for summary judgment] make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just." (Emphasis added). The Court' October 24 Order complied with Rule 56(d) by s removing from the litigation an issue that was not legitimately in controversy. Indeed, given the statutory language and well-established case law refuting plaintiff' claim, the s Court' ruling on the number of "works" under the Copyright Act properly limited the s scope of this litigation. The Fifth Circuit has noted that a summary judgment ruling should have an economical effect in that, "the length and complexity of trial on the remaining issues are lessened, all to the advantage of the litigants, the courts, those waiting in line for trial, and the American public in general . . . In short, a district judge must have considerable discretion in determining when enough is enough." Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408 (5th Cir. 1993). Plaintiff' contention that the Court' ruling was erroneous because the Court was s s required to view the facts in the light most favorable to plaintiff is likewise mistaken. The issue decided by the Court ­ the number of "works" under the Copyright Act ­ is a legal
1735475/12444.027

Case 2:04-cv-00621-SRB

Document 107- 3 - Filed 11/22/2005

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issue rather than a factual one. "The Court may classify an arguable fact question as legal if it considers the court better equipped than a jury to decide the issue. Issues designated as legal can be decided by the Court at the summary judgment stage rather than being submitted to the jury." Moore' Federal Practice, § 57.11[7][a] (emphasis added). Here, s there is no question that the "number of works" issue decided by the Court was a legal one better suited for the Court than the jury.1 See, e.g., Markham v. Westview Instruments, Inc., 517 U.S. 370 (1996) (scope of patent was question of law for court rather than jury). Plaintiff' Motion for Clarification sets forth no authority supporting his position. s The first case cited by plaintiff in support of his argument, Commonwealth of the Northern Mariana Islands v. United States, is factually distinguishable and legally inapposite. In Commonwealth, the Ninth Circuit upheld the district court' grant of s summary judgment in favor of the United States on the basis of the federal paramountcy doctrine. 399 F.3d 1057, 1060 (9th Cir. 2005). Accordingly, plaintiff' citation to s

Commonwealth is of no value. In footnote 3 of his Motion, plaintiff cites a case from the District of Maryland, Co-Star Group v. Loopnet, Inc., which purportedly stands for the proposition that: "For a court to issue a summary judgment ruling on exactly how many works were infringed (rather than simply denying the motion that "n" works existed), both parties must file cross-motions for summary judgment." Plaintiff' Motion, fn. 3 at 3. s Nowhere in the Co-Star case did the district court say ­ or even imply ­ that parties disputing the number of works must file-cross motions for summary judgment. And while a portion of the Co-Star opinion is devoted to a discussion of what constitutes a "work" for the purposes of awarding damages under the Copyright Act, there is nothing in the opinion which suggests that both parties must file cross-motions for summary judgment. ///
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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

The fact that this case is set for a bench trial further supports Avnet' argument that this Court was competent to s rule as matter of law on the number of works under the Copyright Act.
1735475/12444.027

Case 2:04-cv-00621-SRB

Document 107- 4 - Filed 11/22/2005

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Plaintiff' argument is either fabrication or a tortured interpretation of the Co-Star s opinion. III. Conclusion Plaintiff' Motion for Clarification misstates the burdens of parties moving for s summary judgment, asks for clarification of a point that was clearly and unmistakably made by this Court, and fails to provide any legal support for his claim that the Court acted outside its discretion in ruling on a Partial Motion for Summary Judgment. Avnet respectfully urges the Court to deny plaintiff' Motion for Clarification. s RESPECTFULLY SUBMITTED this 22nd day of November, 2005. FENNEMORE CRAIG, P.C.

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

1735475/12444.027

Case 2:04-cv-00621-SRB

Document 107- 5 - Filed 11/22/2005

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CERTIFICATE OF SERVICE I hereby certify that on November 22, 2005, 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

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

1735475/12444.027

Case 2:04-cv-00621-SRB

Document 107- 6 - Filed 11/22/2005

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