Free Memorandum - 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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION TO STRIKE EXHIBITS 1 THROUGH 3 ATTACHED TO DEFENDANTS' SEPARATE STATEMENT OF FACTS ACCOMPANYING DEFENDANTS' REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ­ AND ­ MOTION TO STRIKE EXHIBIT 13 FROM DEFENDANTS' STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

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Defendants Jason Napier, Danielle Napier and Napier Sculpture Gallery, Inc. ("Defendants"), by and through undersigned counsel, hereby submit their Memorandum of Points and Authorities in Support of their Response in Opposition to Plaintiffs' Motion to Strike Defendants' exhibits. RESPECTFULLY SUBMITTED this 17th day of January, 2006.

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

SNELL & WILMER L.L.P.

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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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION The Court's Rule 16 Scheduling Order entered November 15, 2004 originally set forth that all discovery should be completed by June 30, 2005. In May 2005, Plaintiffs requested an extension of time to respond to Defendants' discovery requests. Accordingly, the parties stipulated to an extension of time for Plaintiffs to respond to Defendants' discovery requests until May 11, 2005 and further stipulated to extend the close of discovery to August 5, 2005. The Court later signed an order reflecting this stipulation on May 10, 2005. In July 2005, it became clear to the parties that all necessary depositions would not be able to be completed by August 5, 2005. Accordingly, the parties stipulated to extend the close of discovery to September 2, 2005. The Court then signed an order in response to the parties' joint motion and stipulation which stated that all fact discovery must be completed by September 2, 2005. Defendants filed a second Motion for Summary Judgment on October 7, 2005 which included a Declaration of Jerold Miles attached as Exhibit 13. Plaintiffs' object to the Declaration of Jerold Miles because they claim that Jerold Miles was not disclosed as a trial witness in any disclosure statement prior to the September 2, 2005 discovery deadline. In reply to Plaintiffs' Opposition to Defendants' Second Motion for Summary Judgment, Defendants' also filed Exhibits 1 through 3 which Plaintiffs allege should be stricken because they contain new evidence and documents. Plaintiffs were well aware of Jerold Miles and the declarants making statements in Exhibits 1 and 2 which Plaintiffs seek to strike. In fact, Plaintiffs identified Jerold Miles in their Complaint filed February 26, 2004. Furthermore, Plaintiffs' counsel questioned Defendant Danielle Napier regarding the purchase of Defendant Jason Napier's life-size "Precious Cargo" sculptures by Peter Rittler and Richard Tapper in his deposition of Danielle Napier on July 18, 2005.

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

Even if Plaintiffs were unaware of the statements that Jerold Miles, Peter Rittler, and Richard Tapper would make regarding the purchase of Jason Napier's sculptures, Plaintiffs have ample time before trial (which has not yet been set) to depose these declarants on the limited subject matter to which they attested. In addition, the statements made by these declarants does not have any bearing on the issue of copyright infringement liability but instead bears on potential damages which can later be addressed at trial if this case is not disposed of prior to any trial. Finally, the documents submitted as Exhibit 3 were requested by Plaintiff in Plaintiffs' First Request for Production of Documents and Things and were not available to Defendants until the filing of their Reply Brief. II. EXHIBIT 13 ATTACHED TO DEFENDANTS' STATEMENT OF FACTS SUPPORTING ITS MOTION FOR SUMMARY JUDGMENT FILED ON OCTOBER 7, 2005 DOES NOT PREJUDICE PLAINTIFFS AND SHOULD NOT BE STRIKEN Plaintiffs allege that the Declaration of Jerold Miles attached as Exhibit 13 to

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Defendants' Statement of Facts in Support of its Motion for Summary Judgment filed on 14 October 7, 2005 must be stricken and precluded at trial because it is new evidence that 15 was not disclosed prior to the September 2, 2005 discovery cut-off deadline. Although 16 Plaintiffs admit that the existence of Mr. Miles was known prior to the discovery cut-off 17 deadline, Plaintiffs argue that they did not receive notice that Mr. Miles would testify 18 concerning Jason Napier's "recognizable style" as a sculptor. Plaintiffs further claim that 19 had they known that Mr. Miles' testimony would be used in this regard, that they would 20 have deposed Mr. Miles prior to the discovery cut-off deadline. 21 As Plaintiffs have stated in their Motion to Strike, Plaintiffs were well aware of the 22 existence of Mr. Miles prior to the discovery cut-off deadline. In fact, Plaintiffs alleged in 23 their Complaint that one of the sculptures at issue in this case was purchased by Jerold 24 Miles from the Defendants, and the purchase of this sculpture by Jerold Miles was later 25 confirmed in documents that were disclosed by Defendants even prior to Plaintiffs' First 26 Request for Production of Documents and Things (see ¶23 of Plaintiffs' Complaint and 27 Bates No. NAPIER0020 attached hereto as Exhibit 1). 28
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Fed. R. Civ. P. 56(e) states that "The Court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Defendants' Exhibit 13 containing the affidavit of Jerold Miles attests to the reasons that Mr. Miles purchased the sculpture created by Jason Napier. In the instant case, Plaintiffs have always had the opportunity to depose Jerold Miles. Defendants have made it known to Plaintiffs' counsel on several occasions that they would assist in arranging for Plaintiffs' counsel to depose Mr. Miles on this exact subject which is extremely limited in nature and would likely take less than thirty minutes. Accordingly, there is no prejudice to Plaintiff from this supplementation because Plaintiffs were well aware of the existence of Jerold Miles and have been presented with, and continue to be presented with, opportunities to depose Jerold Miles on the very limited subject matter contained in his affidavit. Two of Plaintiffs' Motions for Summary Judgment remain pending and no trial has yet been set for this case. Accordingly, there is ample opportunity for Plaintiffs to depose Mr. Miles if necessary. Moreover, the declaration of Mr. Miles has no bearing upon the proper resolution of the liability issue in Defendants' second Motion for Summary Judgment. The declaration of Mr. Miles only bears upon the damages issue which, if Defendants were found to be liable, should be addressed at trial and there is ample opportunity to depose Mr. Miles prior to any trial which has not yet been set. III. EXHIBITS 1 THROUGH 3 ACCOMPANYING DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' OCTOBER 7, 2005 MOTION FOR SUMMARY JUDGMENT DO NOT PREJUDICE PLAINTIFFS AND SHOULD NOT BE STRICKEN Defendants' Exhibit 1 is a Declaration of Peter Rittler who purchased a life-sized

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version of Defendant Jason Napier's sculpture entitled "Precious Cargo". Mr. Rittler's 24 deposition attests to the reasons why he purchased Defendant Jason Napier's sculpture. 25 Exhibit 2 is a Declaration of Richard Tapper who also purchased a life-sized version of 26 Defendant Jason Napier's sculpture entitled "Precious Cargo". Mr. Tapper's declaration 27 also attests to the reasons why he purchased Defendant Jason Napier's sculpture. Both the 28
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existence of Peter Rittler and Richard Tapper were known to Plaintiffs' counsel well before the filing of their declarations. Both were listed as purchasers of life-sized versions of Defendant Jason Napier's sculpture in documents previously disclosed to Defendants' counsel bearing Napier Bates No. 0020 (see Exhibit 1 attached hereto). Furthermore, Defendants' counsel questioned Defendant Danielle Napier regarding the life-size sculpture purchases made by these individuals in Danielle Napier's deposition taken July 18, 2005. In the document bearing Bates No. 0020, Richard Tapper is listed as purchasing Edition No. 3 of the life-size version of Defendant Jason Napier's sculpture and Cougar Mountain Zoo (of which Peter Rittler is the owner) is listed as purchasing Edition No. 7 of Defendant Jason Napier's life-sized version of the "Precious Cargo" sculpture. Plaintiffs' counsel Christopher Lonn specifically questioned Defendant Danielle Napier on these specific purchases in her deposition as follows: Danielle Napier's Deposition, pg. 21 (attached hereto as Exhibit 2). Question: Okay. If you would go back to the first page of the Exhibit No. 1. Right here the one that has the seven addition numbers of the life-size version. Well, just we'll just for right now assume that all of these exhibits ­ all of the backup for the casting and freighting costs are in here I think for the most part, except for items six and seven, they are. Item addition No.1 that was 25,000, that as a non-gallery sale? Answer: Correct. Question: No. Two that was a gallery sale? Answer: Correct. Question: Number three, was that a gallery sale or not? Answer: No. Question: No. Okay. Number four non gallery sale? Answer: No. Furthermore, page 25 (attached hereto as Exhibit 3) addresses the purchase of one

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of Defendant Jason Napier's life-size sculptures for Cougar Mountain Zoo as follows: 26 27 28
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Question: Okay. So number six is the only life size version that as incomplete? Answer: Correct.
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Question: And number seven is that also a non gallery sale? Answer: Correct. Well, let me rephrase that. A gallery purchased it. Question: Oh, okay. Do you know which gallery? Answer: I'm not sure the name of their gallery. They go by the name of Cougar Mountain Zoo, but I know they have started or are in the process of starting a gallery so that's why they got the price that they did. They have a wholesale license. Counsel for Plaintiffs was clearly aware of the existence of the individuals for which declarations were submitted as Exhibits 1 and 2 of Defendants' Reply to Plaintiffs'

8 Opposition to Defendants' Motion for Summary Judgment. Furthermore, the subject 9 matter to which the declarants attested is very limited, namely, it is limited to why they 10 purchased a life-size version of Defendant Jason Napier's sculpture. If need be, Plaintiffs' 11 counsel has ample opportunity to depose these declarants on the very limited subject
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

12 matter to which they have attested. Furthermore, the declarations of Peter Rittler and 13 Richard Tapper do not bear on the issue of liability in Defendants' second Motion for 14 Summary Judgment filed October 7, 2005. Instead, these declarations bear on the issue of 15 damages. In the event that this matter proceeds to trial, there is ample time to conduct 16 brief depositions directed to the statements made in the declarations prior to trial. 17 Plaintiffs have clearly not been prejudiced and further have ample time to complete any 18 limited discovery necessary given that trial has not yet been set. Therefore, Plaintiffs 19 request to preclude this evidence at trial should be denied. 20 Exhibit 3 attached to Defendants' Reply to Plaintiffs' Opposition to Defendants' 21 Motion for Summary Judgment filed October 7, 2005 includes participant, artist and booth 22 locations for the participating artists at the Thunderbird Artists Art Show in Carefree, 23 Arizona for the years 1998 through 2001. This information recently became available to 24 Defendants and was even requested by Plaintiffs in their First Request for Production of 25 Documents or Things (see Request No. 7 in Plaintiffs' First Request for Production of 26 Documents and Things attached hereto as Exhibit 4). In particular, Plaintiffs' Request 27 No. 7 specifically calls for production of all documents that Defendants are in possession 28
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of that include (but are not limited to) signing up for the art show, fees paid to the Carefree Art Show, booth assignment locations at the show, etc. Plaintiffs filed a Fourth Supplemental Disclosure Statement (attached hereto as Exhibit 5) on September 2, 2005 which identified Judy Combs and Roger Combs of Thunderbird Artists, Inc. as individuals expected to have knowledge about Jason Napier's truthful character and Danielle Napier's truthful character. Mr. and Mrs. Combs were also listed as being individuals who were expected to have knowledge about the presence of artists Kent Dyer, Jason Napier, Jess Davila, and Tom McDonald at the art shows organized by Thunderbird Artists, Inc. in Carefree, Arizona and Fountain Hills, Arizona and the booth locations of those artists at those art shows. Subsequent to this Fourth Supplemental Disclosure Statement, Defendants were able to obtain specific listings and booth assignments for the artists in the Carefree Art Shows put on by Thunderbird Artists from 1998 through 2001. Those documents are the subject of Defendants' Exhibit 3 at issue here. Plaintiffs have had ample time to depose Roger Combs and/or Judy Combs if they so desired. Plaintiffs were made well aware that these were the individuals who organized and put on the Carefree Art Shows and that they did business under the name Thunderbird Artists. Moreover, the documents in Exhibit 3 have no bearing upon a proper resolution of the issues in the currently pending summary judgment motions submitted by Defendants. However, these documents do bear on the side issues raised by Plaintiffs in their opposition to Defendants' Motion for Summary Judgment filed October 17, 2005 where they allege that a dispute exists as to when Kent Dyer and Jason Napier first met. Plaintiffs claim that Kent Dyer did not meet Jason Napier until the Carefree Art Show in 2001. The 1998 Carefree Art Show booth assignments show Kent Dyer and Jason Napier as being one booth apart from one another. Nevertheless, even if Plaintiffs have met their burden of proving that there is a disputed fact as to when Jason Napier met Kent Dyer, this fact does not bear on the proper resolution of the issues contained in Defendants' pending Motions for Summary Judgment. Moreover, the documents in
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Exhibit 3 should not be precluded from being used as evidence at trial in that Plaintiffs specifically requested these documents and Defendants have produced them as soon as they came into Defendants' possession. In addition, Plaintiffs have ample opportunity to question Judy Combs and/or Roger Combs regarding the specifics of these documents. IV. CONCLUSION Based on the foregoing points and authorities, Defendants respectfully request that the Court deny Plaintiffs' Motion to Strike Exhibits 1 Through 3 attached to Defendants' Separate Statement of Facts Accompanying Defendants' Reply Memorandum in Support of its Motion for Summary Judgment and further deny Plaintiffs' Motion to Strike Exhibit 13 from Defendants' Statement of Facts in Support of its Motion for Summary Judgment. Defendants further request that the Court deny Plaintiffs' request to preclude Defendants from offering any of these exhibits at trial and further deny Plaintiffs' request for their attorney's fees and costs associated with filing Plaintiffs' Motion to Strike. RESPECTFULLY SUBMITTED this 17th day of January, 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 CERTIFICATE OF SERVICE I hereby certify that on January 17, 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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