Free Response - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Laura Zeman (#014713) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

KENT DYER and SUSAN DYER, husband and wife, Plaintiffs, vs. JASON NAPIER and DANIELLE NAPIER, husband and wife; NAPIER SCULPTURE GALLERY, INC., a Washington corporation, Defendants.

No. CV04-0408 PHX SMM DEFENDANTS' RESPONSE TO PLAINTIFFS' REQUEST FOR POSTPONEMENT OF ATTORNEYS' FEES BRIEFING WHILE APPEAL IS PENDING

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Defendants, Jason Napier, Danielle Napier, and Napier Sculpture Gallery, Inc. ("Defendants"), by and through undersigned counsel, hereby respond in opposition to Plaintiffs' request for postponement of attorneys' fees briefing while appeal is pending. On March 16, 2006, the Court granted Defendants' Motion for Partial Summary Judgment and barred Plaintiffs from recovering statutory damages or attorneys' fees as a matter of law. On September 25, 2006, the Court granted Defendants' Motion for

Summary Judgment and entered a Final Judgment in favor of Defendants which did not determine the propriety or amount of attorneys' fees. Defendants filed a motion for their attorneys' fees on October 10, 2006 which set out the applicable judgment and statutory authority entitling Defendants to the award and the estimated amount of attorneys' fees being sought. In addition, Defendant Napiers stated that they would submit a

memorandum and supporting documentation for their motion for attorneys' fees within
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the time frame contemplated by LRCiv 54.2(b)(2) which states that the memorandum of points and authorities in support of a motion for award of attorneys' fees and all supporting documentation shall be filed and served within sixty (60) days of the entry of final judgment. Plaintiffs filed a Notice of Appeal to the United States Court of Appeals for the Ninth Circuit on October 20, 2006. Plaintiffs then filed a Response to Defendants' Motion for Attorneys' Fees and Request for Postponement of Attorneys' Fees Briefing While Appeal is Pending on October 26, 2006. Defendants oppose Plaintiffs' Request For Postponement Of The Briefing On Defendants' Motion For Attorneys' Fees While Plaintiffs' Appeal Is Pending. In addition, Defendants contend that Plaintiffs response to Defendants' Motion for Attorneys' Fees filed October 26, 2006 is incomplete, inaccurate, and premature. I. THIS COURT HAS THE AUTHORITY TO AWARD ATTORNEYS' FEES DESPITE PLAINTIFFS' FILING OF A NOTICE OF APPEAL AND SHOULD DO SO IN THIS CASE WITHOUT POSTPONEMENT A District Court retains the power to award attorneys' fees after notice of appeal

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from the decision on the merits has been filed. International Association of Bridge, 16 Structural, Ornamental, and Reinforcing Iron Workers Local Union 75 v. Madison 17 18 19 court stated that the Supreme Court in White v. New Hampshire Department of 20 21 notice of an appeal. In White, the Supreme Court stated that "The District Court can 22 avoid piecemeal appeals by promptly hearing and deciding claims to attorneys' fees" and 23 that "Such practice normally will permit appeals from fee awards to be considered 24 together with any appeal from a final judgment on the merits." Id. at 454. 25 In the request for postponement of the briefing on Defendants' Motion for 26 Attorneys' Fees, Plaintiffs state that their primary concern is the significant amount of 27 28 attorneys' fees and costs that will be expended in briefing Defendants' Motion for 1 455 US 445, 71 L. Ed. 2d 325, 102 Supreme Court 1152 (1982).
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Industries Inc., 733 F.2d 656, 658 (9th Circuit 1984) citing Masalosalo v. Stonewall Insurance Company, 718 F.2d 955, 957 (9th Circuit 1983). In fact, in Masalosalo, the

Employment Security1 had implicitly approved the award of attorneys' fees after the

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Attorneys' Fees and Costs and that this substantial amount of attorneys' fees and costs will have been wasted and the time and resources of this court imprudently expended if the Ninth Circuit reverses this Court's granting of Defendants' Motion for Summary Judgment and remands the case for trial. Plaintiffs also state that Defendants are not unduly prejudiced by postponement of the briefing on their motion for attorneys' fees and that "Briefing the attorneys' fees issue now and then possibly again if Plaintiffs are successful on their appeal would prejudice Plaintiffs and Defendants insofar as duplicative attorneys' fees and costs will be expending on briefing the issue of attorneys' fees."2 Defendants oppose Plaintiffs' request for postponement of the briefing on Defendants' motion for attorneys' fees and do not understand Plaintiffs' logic for wanting to do so. Indeed, this Court has agreed with other courts which have recognized that the District Court's authority to award attorneys' fees after the notice of appeal from the decision on the merits best serves the policy against piecemeal appeals. In particular, the recognition of continuing jurisdiction to award fees may prevent delay and duplication at the appellate level because, if a District Court decides a fee issue early in the course of a pending appeal on the merits, and the fee order as appealed, the appeals may be consolidated. Masalosalo, 718 F.2d at 957 citing Terket v. Lund, 623 F.2d 29, 34 (7th Circuit 1980). Moreover, the Court in Turket, stated that recognizing the District Court's authority to award attorneys' fees after a notice of appeal would prevent postponement of fee considerations until after the circuit court mandate when the relevant circumstances will no longer be fresh in the mind of the district judge.3 Finally, Defendants do not understand Plaintiffs' argument as to how Plaintiffs' success on an appeal would result in again briefing the issue of attorneys' fees. This Court has previously concluded that Plaintiffs are barred from recovering statutory damages or attorneys' fees as a matter of law. Therefore, even if Plaintiffs were

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successful on an appeal, Plaintiffs would not be entitled to file a motion for attorneys' fees 2 See page 2, Plaintiffs' Response to Defendant Napiers Motion for Attorneys' Fees and Request for Postponement of Attorneys' Fees Briefing While Appeal is Pending filed October 26, 2006. 3 Turket, 623 F.2d at 34.
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and brief that issue. Given the facts and law of this case, the only prevailing party that could be entitled to attorneys' fees is Defendants. Defendants have spent a substantial amount of fees and costs in defending the allegations of copyright infringement made by Plaintiffs. This Court has determined that Defendants were successful as a matter of law and Defendants are entitled to pursue those fees and costs expended in defending the accusations made by Plaintiffs. Delaying

briefing on Defendants' entitlement to attorneys' fees would prejudice Defendants as well as this Court in that the relevant circumstances relating to Defendants' motion for attorneys fees would no longer be fresh in the mind of this Court. Accordingly,

Defendants respectfully request that this Court deny Plaintiffs' request for postponing the briefing on Defendants' Motion for Attorneys' Fees while Plaintiffs' appeal is pending. II. PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR ATTORNEYS' FEES IS INCOMPLETE, INACCURATE, AND PREMATURE Plaintiffs cite two cases which provide factors for this Court to consider in making an attorneys' fees award pursuant to 17 U.S.C. §505.4 However, Plaintiffs further state that, without delving into the details of the cases they cite, the Court should take judicial notice that Defendants' stipulated to the issuance of a preliminary injunction sought by Plaintiffs in their Verified Complaint and Application for Preliminary Injunction. Plaintiffs further state that Defendants acknowledged the merits of Plaintiffs' copyright infringement claims from the outset of this case in that they otherwise would not have stipulated to the issuance of the Preliminary Injunction.5 Defendants fail to see how stipulating to a Preliminary Injunction in any way acknowledges the merits of Plaintiffs' copyright infringement claim. In fact, Defendants stipulated to a Preliminary Injunction in an effort to settle and compromise Plaintiffs' claims brought against Defendants and Paragraphs 1 and 2 of the Stipulation for Issuance 4 See page 2, Plaintiffs' Response to Defendant Napiers Motion for Attorneys' Fees and Request for Postponement of Attorneys' Fees Briefing While Appeal is Pending filed October 26, 2006. 5 See page 3, Plaintiffs' Response to Defendant Napiers Motion for Attorneys' Fees and Request for Postponement of Attorneys' Fees Briefing While Appeal is Pending filed October 26, 2006.
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of Preliminary Injunction filed with this Court on April 16, 2004 clearly states that.6 Plaintiffs go on to state that the intensity of the briefing by the parties on Defendants' Motion for Summary Judgment and the Court's Memorandum Decision on that motion demonstrate the closeness of the legal issues at hand in this case and that the Court would be well within the bounds of its discretion to not award attorneys' fees to Defendants. Plaintiffs also state that they have already been victimized through the infringement of their copyright by Defendants and that Defendants have profited handsomely from the sale of the "Precious Cargo" sculpture taken from Plaintiffs' copyrighted photograph.7 Contrary to Plaintiffs' assertions, this Court has already found that Defendants are not liable for copyright infringement. In addition, contrary to

Plaintiffs' assertion that Defendants have profited handsomely from the sale of their "Precious Cargo" sculpture, Defendants have expended more money in fees and costs in defending this lawsuit than they have received in profits from any prior sales of their "Precious Cargo" sculpture. III. CONCLUSION For all the foregoing reasons, Defendants respectfully request that this Court deny Plaintiffs' request for postponing the briefing for Defendants' motion for attorneys' fees while plaintiffs' appeal is pending before the Ninth Circuit Court of Appeals. DATED this 7th day of November, 2006. SNELL & WILMER L.L.P.

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By /s Laura J. Zeman Laura J. Zeman One Arizona Center 400 East Van Buren Street Phoenix, Arizona 85004-2202 Attorneys for Defendants
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See pages 1-2 of Stipulation for Issuance of Preliminary Injunction filed April 16, 2004. See page 3, Plaintiffs' Response to Defendant Napiers Motion for Attorneys' Fees and Request for Postponement of Attorneys' Fees Briefing While Appeal is Pending filed October 26, 2006.
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CERTIFICATE OF SERVICE I hereby certify that on November 7, 2006, 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: Christopher D. Lonn, Esq. [email protected] Michelle Justine Perkins [email protected] s/Laura Zeman _

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