Free Motion for Miscellaneous Relief - 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. Pursuant to Rule 7.1, ARIZ. R. CIV. P., Plaintiff Dan Coogan ("Coogan"), by and through undersigned counsel, hereby moves this Court for clarification of its Opinion and Order dated October 24, 2005 (the "Order") by clarifying that, while summary judgment was denied (in part) on the issue of the existence of more than one work, summary judgment was not granted to Defendants on this issue. Coogan's Motion is supported by the following Memorandum of Points and Authorities and the entire record in this case. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On May 27th , 2005, Coogan filed a partial motion for summary judgment moving, in relevant part, for a ruling that, as a matter of law, Defendants infringed three separate Case No.: CV-04-0621 PHX SRB PLAINTIFFS' MOTION FOR CLARIFICATION OF THIS COURT'S OPINION AND ORDER DATED OCTOBER 24, 2005, ON THE ISSUE OF THE NUMBER OF WORKS INFRINGED

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copyrighted works, therefore warranting damages for three separate counts of infringement under 37 CFR § 202.3(3)(B) and 17 U.S.C. § 501. The Court denied

Coogan's motion on this point, concluding that Coogan had not shown, as a matter of law, that three separate works were infringed under 17 U.S.C. §504(c)(1). See Order at 11-12; 14. However, the Court also appeared to rule that, not only did Coogan fail to show three works, but that summary judgment would be affirmatively granted to Defendants (the nonmoving party) that only one work existed. Id. While Coogan understands and accepts that his Motion for Summary Judgment was denied on the issue of whether three separate works were infringed, summary judgment cannot be affirmatively granted to Defendants based on Plaintiff's Motion (and the corresponding Response and Reply) because Plaintiff's Motion, pursuant to Rule 56, presented the facts in the light most favorable to the Defendants. For the Defendants to be granted summary judgment on this issue, they must file a Motion setting forth the facts in the light most favorable to the Plaintiff. See case law cited, infra. Thus, this Motion for Clarification requests a clarification that, while the Court denied Coogan's request for a ruling that three works existed, the Court did not grant summary judgment to Defendants, ruling that, as a matter of law, only one work existed. Rather, with Coogan's Motion for Summary Judgment having been denied, the issue of how many works were infringed remains undetermined. II. DISCUSSION "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 . . . ."). Therefore, a motion for summary judgment can either be granted or denied, but cannot result in

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summary judgment being granted to the other party. Commonwealth of the Northern Mariana Islands v. United States, 399 F.3d 1057, 1060 (9th Cir. 2005) (citing Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004) and Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004)) (noting that an appeals court reviews de novo "the district court's decision to grant or deny summary judgment.") (Emphasis added). Here, the Court denied Coogan's request for a summary judgment ruling that three separate works existed.1 This denial, however, should not result in an affirmative ruling that only one work existed2 ; rather, the Court's denial of Coogan's partial motion should simply leave the issue undecided. Were it otherwise, Defendants would be granted summary judgment on a motion where the facts were construed most favorably to them. As stated above, summary

judgment cannot be granted in this way; summary judgment can only be granted where the facts are viewed in the light most favorable to the party opposing summary judgment. See Commonwealth of the Northern Mariana Islands, 399 F.3d at 1060 (citing Olsen, 363 F.3d at 922) ("Summary judgment is proper when, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the court determines that the district court correctly applied the substantive law.") Because Defendants did not file a Motion for Summary judgment, the facts were never viewed in the light most favorable to Plaintiff on the issue of whether one or three works existed.3 III. CONCLUSION For the foregoing reasons, Coogan respectfully requests that this Court clarify the Order by stating that, while summary judgment on the issue of whether one or three works exist in this case was denied to Coogan, summary judgment was not granted in favor of
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Order, page 12, lines 9-10, "...Plaintiff's proposed construction of the statute is rejected" Order, page 14, lines 16-17, "As a matter of law, the Vallee photographs constitute one `work' within the meaning of 17 U.S.C. § 504(c)(1)..." 3 For a court to issue a summary judgment ruling on exactly how many works were infringed (rather than simply denying the motion for summary judgment that "n" works existed), both parties must file cross-motions for summary judgment. See, e.g., Co-Star Group Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 709-12 (D. Md. 2001).

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Defendants. Therefore, the issue of whether one or three works existed in this case remains undetermined. A Proposed Order is attached to the Judge's copy of this, emailed to the Judge's email address in WordPerfect Compatible Format (in this instance Word 6.0/'95 format).

Dated this 7th 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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CERTIFICATE OF SERVICE I hereby certify that on 7 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 7 November 2005 I mailed a copy, and a printed copy of the Proposed Order, to: 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 7 November 2005 an email copy in PDF format is being emailed to Judge's chambers ([email protected]), with a Proposed Order (in WordPerfect Compatible Format, in this case, Word 6.0/95 format). /s Jordan M. Meschkow

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