Free Response - District Court of Arizona - Arizona

1 C. Mark Kittredge (#013907) Scott S. Minder (#023367) 2 PERKINS COIE BROWN & BAIN P.A. 3 2901 North Central Avenue Post Office Box 400 4 Phoenix, Arizona 85001-0400 (602) 351-8000 5 [email protected] 6 [email protected] 7 Attorneys for Defendant Arizona Academy for the Performing Arts, Inc. 8 9 10 11 Johan de Meij, d/b/a Amstel Music, BV, 12 13 14 15 16 17 18 19 20 21 22 23 Introduction Plaintiff moved for summary judgment on the Arizona Academy for the Plaintiff, THE ARIZONA ACADEMY FOR THE PERFORMING ARTS' RESPONSE TO PLAINTIFF'S Tempe Union High School District, Corona Del MOTION TO STRIKE SUMMARY Sol Band Boosters, Great Video Productions, JUDGMENT EVIDENCE Arizona Music Educators Assoc., Arizona Academy for the Performing Arts, Inc., Mark D. Richardson, William J. Richardson and Chris Evans, v. Defendants. No. CIV 04-0341 PHX RCB UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

24 Performing Arts' ("the Academy") affirmative defense under 17 U.S.C. § 412, arguing

1 25 that the Academy's allegedly infringing activities began in December of 2002. The

26 27 [Plaintiff's Motion for Summary Judgment on Defendants Tempe Union High 28 School District and Arizona Academy for the Performing Arts' Affirmative Defenses
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Academy responded and cross-moved for summary judgment on the same defense by: (i) explaining how Plaintiff's motion is contradicted by Plaintiff's own Complaint; and (ii) submitting a declaration that explains the timeline by which the allegedly infringing activities actually occurred.2 Plaintiff has now moved to strike that declaration based solely on the assertion that it "contradicts" the declarant's previous pleading. [Motion at 3]3 This argument,

however, is nothing more than a smoke screen and semantic game, designed to divert the Court's attention away from the uncontested material facts stated in the declaration. More importantly, however, the so-called "contradiction" does not exist and appears to be Accordingly, Plaintiff's Motion should be denied. Argument A. Plaintiff's Argument Ignores the Material Facts in Mr. Richardson's Declaration and, Therefore, Should be Rejected.

based on studied ignorance of express statements contained in the previous pleading.

"arrangement" in Mr. Richardson's Declaration and Answer. This argument should be which the declaration was submitted.4

Plaintiff's entire argument is based on an allegedly contradictory use of the word

rejected because it ignores the facts in the declaration that are material to the motions for Under 17 U.S.C. § 412, the Plaintiff cannot recover statutory damages or

attorney's fees if the allegedly infringing activities "commenced" before he registered his copyright in the subject work. Mr. Richardson's declaration describes the timeline under

Under 17 U.S.C. § 412 (at Docket 124) (hereafter, "Plaintiff's Motion for Summary Judgment").] [The Arizona Academy for the Performing Arts' Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment (at Docket 136 and 153) (hereafter, "the Academy's Cross-Motion for Summary Judgment").]
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Plaintiff's "Motion" is attached to his Response and Objections to Defendant AAPA's Statement of Facts.
3 4

Plaintiff's Motion for Summary Judgment and the Academy's Cross-Motion for Summary Judgment.
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which the alleged infringing activities "commenced" and were conducted.

Plaintiff

attempts to avoid the realities of this timeline by focusing on semantic arguments regarding the words "arrangement" on the one hand and "editing" on the other. [Motion at 4] It simply does not matter, however, whether Mr. Richardson's efforts are called "arranging" or "editing." Those allegedly infringing activities began and were "well under way by the end of April, 2002." [Decl. M. Richardson, ¶¶ 4, 5]

Plaintiff has not even attempted to challenge this timeline or present contrary evidence. Indeed, the Court could strike the word "arrangement" from Mr. Richardson's declaration and substitute the word "edit" (the alleged prior inconsistent statement

[Motion at 4]) and the import of this declaration would be unchanged. The declaration would still unambiguously demonstrate that the allegedly infringing activities commenced long before Plaintiff registered his copyright. Nothing more need be said and Plaintiff's motion should be denied. B. Mr. Richardson's Declaration Does Not Contradict the Answer Filed on His Behalf In This Case.

Plaintiff has created this argument out of whole cloth, twisting some statements in Mr. Richardson's Answer while ignoring other statements in that same Answer that the arrangement developed by Mark Richardson was based on a performance of `The expressly acknowledge the preparation of an "arrangement": "the Richardsons admit that Big Apple' . . . ." [Richardson's Answer to 2nd Am. Compl. ("Richardson's Answer"),

¶ XIII (at Docket 76)] This statement could not be more clear. Indeed, it is difficult to imagine how anyone could assert a good faith basis to allege a contradiction between Mr. Richardson's declaration and answer. This is especially troubling given the thin

argument Plaintiff advances for the alleged contradiction. Plaintiff cites (at 4) to three different portions of Mr. Richardson's Answer to support his alleged contradiction: Richardson's Answer at ¶¶ XI, XII and p. 10

(affirmative defenses). There is simply nothing within the affirmative defenses on p. 10 of Mr. Richardson's Answer remotely related to the preparation of an "edit" or an
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"arrangement." It would appear that plaintiff either miscited this portion of the Answer or is suggesting support that does not exist. The other two cites to Mr. Richardson's Answer are addressed below. Plaintiff cites to paragraph XI of Mr. Richardson's Answer. That paragraph, however, does not contain a denial that Mr. Richardson prepared something called an "arrangement," as asserted by plaintiff. demonstrates that, at most, it: (i) denies there was a so-called "sweetheart" deal as alleged by Plaintiff with complicated and specific particularity; (ii) denies that, if there was a "sweetheart deal," the so-called "Custom Arrangement" included the alleged three parts; and (iii) asserts a fair use defense to the allegations of infringement. Plaintiff also cites to paragraph XV of Mr. Richardson's Answer. Here, Plaintiff is apparently focusing on the following language: "The Richardsons deny that the Rather, a fair reading of that paragraph

performance constituted a custom arrangement and affirmatively assert that the performance was subject to the fair use exception for performances . . . ." [Richardson's Answer ¶ XV (emphasis added)] There is no rational way to conclude that Mr. Richardson denied preparing something that might be called an "arrangement." The specific language merely denies that the "performance" was "a custom arrangement" (emphasis added), a term that Plaintiff defined with great particularity. Indeed, the gravamen of the liability denial in this paragraph is the assertion that whatever was done "was subject to the fair use" defense. [Id.] Hence, there simply is no contradiction that would justify striking the declaration. See Payne v. Apollo College ­ Portland, Inc., 327 any alleged "discrepancies" do not "flatly contradict" prior statements). The two cases relied on by plaintiff do not support a contrary conclusion. See Motion at 3, citing Knudsen v. United States, 254 F.3d 747 (8th Cir. 2001); and Soo Liner R.R. Co. v. St. Louis Southwestern Ry. Co., 125 F.3d 481 (7th Cir. 1997). Both cases involved "admissions" contained in the pleadings of the party against whom summary judgment was sought. Knudsen at 751-52; Soo at 482-83. Here, Plaintiff is attempting to
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F. Supp. 2d, 1237, 1240 (D. Or. 2004) (refusing to strike portions of an affidavit because

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use Defendant Richardson's pleading to exclude evidence offered by the Academy. More importantly, however, both Knudsen and Soo involved unambiguous statements that the plaintiff expressly contradicted to avoid summary judgment. Knudsen at 752; Soo at 483. There is no similar unambiguous contradiction in this case, nor is the Academy creating an issue of material fact. Payne at 1240 (finding that the alleged "discrepancies" did not "flatly contradict" prior statements and were not "made for the purpose of creating an issue of material fact"). Finally, to the extent there is any possible confusion, a supplemental Declaration of Mark Richardson is attached as Exhibit 1, explaining the obvious: (1) that he

personally has not attached any particularly different meaning to the terms "arrangement," "edit" or "modification" and (ii) that the whole point of his declaration was to explain when his work began and how it progressed. Conclusion and Relief Requested For the foregoing reasons, the Academy respectfully requests that Plaintiff's Motion to Strike be denied. Indeed, the total lack of merit in this motion further

demonstrates the vexatious manner in which Plaintiff is prosecuting this action. Accordingly, the Academy again requests that the Court grant its Application for Security for Costs.

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Dated: September 23, 2005. PERKINS COIE BROWN & BAIN P.A.

By s/ C. Mark Kittredge C. Mark Kittredge Scott S. Minder 2901 North Central Avenue Post Office Box 400 Phoenix, Arizona 85001-0400 Attorneys for Defendant Arizona Academy for the Performing Arts, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on September 23, 2005, I electronically transmitted the attached documents 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: R. Buck McKinney [email protected] LAW OFFICE OF BUCK MCKINNEY Post Office Box 6231 Austin, Texas 78762-6231 Attorney for Plaintiff Martin P. Clare [email protected], [email protected], [email protected] CAMPBELL, YOST, CLARE & NORELL, P.C. 101 North First Avenue, Suite 2500 Phoenix, Arizona 85003-0001 Attorneys for Defendants Mark D. Richardson and William J. Richardson Francis G. Fanning [email protected] LAW OFFICES OF FRANCIS G. FANNING 500 East Southern Avenue, Suite B Tempe, Arizona 85282-5211 Attorneys for Defendant Corona del Sol Band Boosters, Inc. Garrick L. Gallagher [email protected] Debora L. Verdier [email protected] SANDERS AND PARKS 3030 North Third Street, Suite 1300 Phoenix, Arizona 85012 Attorneys for Defendant Tempe Union High School District Thomas K. Irvine [email protected] IRVINE LAW FIRM 1419 North Third Street, Suite 100 Phoenix, Arizona 85004 Attorneys for Defendant Arizona Music Educators Association

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I hereby certify that on September 23, 2005, I served the attached document by first class mail to: The Honorable Robert C. Broomfield United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, Suite 216, SPC 61 Phoenix, Arizona 85003-2118 I hereby certify that on September 23, 2005, I served the attached document by first class mail on the following, who are not registered participants of the CM/ECF System: Arizona Music Educators Association c/o John C. Faris 4312 West Royal Palm Road Glendale, Arizona 85302-6625 J. Gregory Osborne TOLMAN & OSBORNE, P.C. 1920 East Southern Avenue, Suite 104 Tempe, Arizona 85282 Attorneys for Defendant Chris Evans s/ Janet Roe

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