Free Motion to Supplement - District Court of Arizona - Arizona

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R. Buck McKinney Texas Bar #: 00784572 LAW OFFICE OF BUCK MCKINNEY PO Box 6231 Austin, Texas 78762-6231 Telephone: (512) 236-0150 Facsimile: (512) 444-1879 ATTORNEY FOR PLAINTIFF UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA PHOENIX DIVISION JOHAN DE MEIJ, d/b/a AMSTEL MUSIC, BV Case No.: No. CIV 04-0341 PHX RCB PLAINTIFF, vs. TEMPE UNION HIGH SCHOOL DISTRICT, CORONA DEL SOL BAND BOOSTERS, GREAT VIDEO PRODUCTIONS, ARIZONA MUSIC EDUCATORS ASSOC., ARIZONA ACADEMY FOR THE PERFORMING ARTS, INC., MARK D. RICHARDSON, WILLIAM J. RICHARDSON AND CHRIS EVANS DEFENDANTS PLAINTIFF'S MOTION FOR LEAVE TO SUBMIT ADDITIONAL EVIDENCE IN SUPPORT OF MOTION FOR LEAVE TO AMEND PLEADINGS

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I.
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BACKGROUND

On May 20, 2005, Plaintiff filed a motion for leave to amend his pleadings in the referenced matter, seeking to add claims for violations of the Racketeering Influenced & Corrupt Practices Act, 18 U.S.C. § 1961 et. seq ("RICO"). (Docket # 96). In his motion and proposed amended pleading, Plaintiff alleged that Mark and Bill Richardson engaged in a "pattern of racketeering activity" by committing "serial acts" of copyright infringement for

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personal gain through their company, the Arizona Academy for the Performing Arts ("AAPA"). Id. ¶ 37. Plaintiff identified four musical compositions which were infringed in

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this manner over a three-year period: Plaintiff's work "The Big Apple;" the theme to the movie "Field of Dreams;" and two musical compositions by Belgian composer Jan Van der Roost - "Stonehenge" and "Canterbury Chorale." Id.

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At the time he filed his motion, Plaintiff had confirmed all aspects of the alleged infringements concerning the first two compositions, including the sale of the scores in question by the AAPA.1 As to the last two compositions, Plaintiff had confirmed that Mark Richardson created the scores in question,2 but lacked any proof that those scores were actually sold through the AAPA. Plaintiff had, in fact, been trying for over a year to obtain that

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information from Defendant Tempe Union High School District, but the District steadfastly refused to produce it.3 Faced with a looming deadline to request leave to amend,4 Plaintiff filed his motion, predicating his allegations regarding "Stonehenge" and "Canterbury Chorale" upon "information and belief." Id.

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The Richardsons and the AAPA mounted frenzied attacks on Plaintiff's motion, characterizing it as "speculation," "a Frankenstein monster," "needlessly dilatory" and "lacking in good faith." 5 The Richardsons specifically (and incorrectly) asserted that it was "improper" to plead a RICO claim on "information and belief,"6 and essentially misrepresented to this

See, Exhibit C, Plaintiff's Statement of Facts, Docket # 125. Bill Richardson has already admitted this fact. See letter from Bill Richardson, attached hereto as Exhibit "A."

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See Plaintiff's Motion to Compel Discovery, Docket #64. For clarification, Plaintiff originally sought this information in connection with his claim of "willful infringement," the Defendants' "fair use" defenses and Plaintiff's due process claims. Factually, the information also related to Plaintiff's RICO claims. See Joint Report and Pretrial Schedule, Docket # 93.

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See Richardsons' Response to Plaintiff's Motion for Leave, p. 5, Docket # 104; AAPA's Opposition to Plaintiff's Motion for Leave, pp. 1-2, Docket # 103.

See Richardsons' Respone to Plaintiff's Motion for Leave, pp. 4-5. In fact, it is entirely adequate to plead RICO violations predicated upon "information and belief." See Plaintiff's Reply to Defendants' Response to Plaintiff's Motion for Leave to Amend, pp. 9-10, Docket # 107.

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Court that Plaintiff's claims had no basis in fact. For its part, the District continued to thwart Plaintiff's efforts by refusing to produce information and/or documents relevant to Plaintiff's RICO claim. Finally, on August 16, 2005, the Court ordered the District to produce the

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information.7 That information proves beyond any refutable doubt that Plaintiff's claims are well-founded. II. NEW EVIDENCE

Plaintiff files this Motion requesting that the Court allow Plaintiff to supplement the record with the above-referenced information, and other information recently provided by co-

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Defendants AAPA and Mark Richardson.

Specifically, Plaintiff presents for the Court's

consideration an AAPA invoice dated December 7, 2000, and a corresponding purchase order dated November 20, 2000 - both related to Mark Richardsons' sale (with the material assistance of Bill Richardson) of the above-referenced musical arrangement of "Stonehenge."

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(See, Exhibit "B" hereto). Although "Canterbury Chorale" isn't referenced in the invoice or purchase order, Bill Richardson has already admitted that it was part of the same arrangement. (See Exhibit "A"). Exhibits A and B unequivocally affirm the "series of transactions"

referenced in Plaintiff's Motion for Leave. Moreover, the District's supplemental responses confirm that the Richardsons conspired to commit similar acts of copyright infringement

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during each of the marching band seasons running from 1997 through 2002. (See Exhibit "C"). For its part, the AAPA now alleges that it had nothing at all to do with the authorization, creation or copying of the arrangement(s) in question; and that the Richardsons merely used the AAPA to "sell" the work and funnel funds from the District to Mark

Docket #128.

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Richardson.8 A declaration signed by Mark Richardson and attached to the AAPA's pleadings specifically confirms the AAPA's allegations.9 Obviously, this is a classic "racketeering" scenario. Indeed, in addition to criminal copyright infringement, this evidence implicates

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additional RICO violations predicated on "mail fraud," "wire fraud" and/or "moneylaundering." See 18 U.S.C. §§ 1341, 1343 & 1956. III. CONCLUSION

In summary, newly discovered evidence submitted herewith unequivocally proves that the Richardsons used the AAPA as a "cover" or "front" for a series of transactions constituting

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criminal copyright infringement; and that this "pattern" of criminal activity spanned several years and multiple acts of infringement. Plaintiff respectfully requests leave to submit this evidence in connection with his Motion for Leave to File a Third Amended Pleading. Dated this 30th day of September, 2005.

s/ R. Buck McKinney________________ R. Buck McKinney, Esq. LAW OFFICE OF BUCK McKINNEY Texas Bar No. 00784572 P.O. Box 6231 Austin, Texas 78762-6231 Telephone (512) 236-0150 Facsimile (512) 444-1879 ATTORNEY FOR PLAINTIFF

See AAPA's Reply in Support of Application for Security for Costs, Docket # 156, at p. 3 ("[T]he Academy simply was not involved in the allegedly infringing activities that are the subject of this suit"), and at p. 4, ("It is true that after completion of all of the allegedly infringing acts, Mark and Bill Richardson arranged to have Mark Richardson's compensation from the school paid through the Academy"). See Mark Richardsons' Declaration, ¶¶ 7-8, attached as Exhibit "D," in which Mark Richardson avers that he and Bill Richardson "decided that it would be most convenient to pay me through the Academy, even though the Academy had not had any involvement in preparation of the musical arrangement or drill design."
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CERTIFICATE OF SERVICE I certify that on September 30, 2005, a copy of the attached document was electronically transmitted using the CM/ECF System for electronic filing and transmittal of a notice of electronic filing to the following CM/ECF registrants: Garrick L. Gallagher [email protected] Debora L. Verdier [email protected] Sanders and Parks, PC 3030 N. Third Street, Suite 1300 Phoenix, AZ 85012-3099 Francis G. Fanning [email protected] Law Offices of Francis G. Fanning 500 E. Southern Ave., Suite B Tempe, AZ 85282-5211 Martin P. Clare [email protected]; [email protected]; [email protected] Campbell, Yost, Clare, & Norell, P.C. 101 North First Avenue, Suite 2500 Phoenix, AZ 85003 C. Mark Kittredge [email protected]; [email protected]; [email protected] Scott S. Minder [email protected]; [email protected] Perkins Coie Brown & Bain, P.A. 2901 North Central Avenue Post Office Box 400 Phoenix, AZ 85001-0400 Thomas K. Irvine [email protected] Irvine Law Firm, PA 1419 N. Third St, Ste. 100 Phoenix, AZ 85004

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I certify that on September 30, 2005 a copy of the attached document was served on the following parties via U.S. mail: J. Gregory Osborne Tolman & Osborne, P.C. 1920 E. Southern Ave., Ste.104 Tempe, AZ 85282

s/ R. Buck McKinney________________
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