Free Reply to Response to Motion - 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 RESPONSE AND OBJECTIONS TO DEFENDANT TEMPE UNION HIGH SCHOOL DISTRICT'S CONTROVERTING STATEMENT OF FACTS AND SEPARATE STATEMENT OF FACTS and MOTION TO STRIKE SUMMARY JUDGMENT EVIDENCE

Plaintiff files this response to Defendant Tempe Union High School District's (the "District") Controverting Statement of Facts ("CSOF") and Separate Statement of Facts ("SOF"), and moves that the Court strike the declaration of Mark Richardson which is relied upon by the District in its CSOF, SOF and Response to Plaintiff's Motion for Summary Judgment. I. District's CSOF ¶ 1: Undisputed. PLAINTIFF'S RESPONSES

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District's CSOF ¶ 2: The date the District began performing Plaintiff's work is material to his claims since it constitutes the date that the District "commenced" infringement of his work. Regarding the District's objection to Exhibit "B" to Plaintiff's SOF under Rule 408 of the Federal Rules of Evidence, the District has not presented any authority for the proposition that the document does not constitute competent summary judgment proof. In any event, the document in question is already a part of the Court's record, having been filed by Plaintiff on June 3, 2005 as summary judgment proof without any objection as to admissibility by the District.1 Finally, Plaintiff notes that the District admits that it began public performance of Plaintiff's work on September 5, 2002, thereby mooting its objection. (See District's Response to Plaintiff's MSJ, p. 3). The District's assertion that Richardson's alleged actions prior to September 5, 2002 are somehow relevant to the District's commencement of infringement is an incorrect interpretation of the law, as set forth in Plaintiff's Reply to the District's Response to Plaintiff's MSJ. Moreover, Plaintiff objects to the District's reliance on the self-serving declaration of Mark Richardson. That declaration contradicts Richardson's own pleadings in this matter, and may not be relied upon to defeat summary judgment. Knudsen v. United States, 254 F.3d 747, 752 (8th Cir.2001).

District's CSOF ¶ 3: The date the AAPA sold an unauthorized arrangement of Plaintiff's work is material to his claims since it constitutes the date that the AAPA "commenced" infringement of his work. The District's assertion that Richardson's alleged actions prior to December 19, 2002 are somehow relevant to the AAPA's commencement of infringement is in incorrect interpretation of the law, as set forth in Plaintiff's Reply to the AAPA's Response to Plaintiff's MSJ. Moreover, Plaintiff objects to the District's reliance on the self-serving declaration of Mark

See Plaintiff's SOF, attached to his Response to the District's Motion for Summary Judgment on Count V of Plaintiff's Second Amended Complaint Docket # 102.

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Richardson. That declaration contradicts Richardson's own pleadings in this matter, and may not be relied upon to defeat summary judgment. Knudsen, 254 F.3d at 752.

District's SOF ¶ 4: Undisputed. Regardless, this issue is irrelevant to the determination of Plaintiff's entitlement to statutory damages and attorney's fees for the District's acts of infringement commencing after the U.S. registration of Plaintiff's work.

District's CSOF ¶ 5: Undisputed. Regardless, this issue is irrelevant to the determination of Plaintiff's entitlement to statutory damages and attorney's fees for the District's acts of infringement commencing after the U.S. registration of Plaintiff's work.

District's CSOF ¶ 6: Plaintiff admits that he described the delay in registering his work in the U.S. in his responses to the District's discovery. Plaintiff disputes that this is the "sole explanation" for the delay. Regardless, this issue is irrelevant to the determination of Plaintiff's entitlement to statutory damages and attorney's fees for the District's acts of infringement commencing after the U.S. registration of Plaintiff's work.

District's CSOF ¶ 7: The alleged date that Mark Richardson purchased the "study score" of Plaintiff's work is irrelevant to the issue of when the District "commenced" infringement of Plaintiff's work. First of all, purchase of a study score does not constitute infringement, much less "commencement" of infringement. Second, neither Richardson nor the District have alleged that Richardson's acts were performed in the course and scope of his employment with the District, so those acts cannot be ascribed to the District. Third, as set forth in Plaintiff's Reply to the District's Response to Plaintiff's MSJ, the Richardsons' alleged pre-registration acts of

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infringement did not constitute "commencement" of the District's post-registration acts of infringement. Finally, Plaintiff objects to the District's reliance on the self-serving declaration of Mark Richardson. That declaration contradicts Richardson's own pleadings in this matter, and may not be relied upon to defeat summary judgment. Knudsen, 254 F.3d at 752.

District's CSOF ¶ 8: The alleged date that Mark Richardson began preparation of on an arrangement of Plaintiff's work is irrelevant to the issue of when the District "commenced" infringement of Plaintiff's work. First of all, neither Richardson nor the District have alleged that Richardson's acts were performed in the course and scope of his employment with the District, so those acts cannot be ascribed to the District. Second, as set forth in Plaintiff's Reply to the District's Response to Plaintiff's MSJ, the Richardsons' alleged pre-registration acts of infringement did not constitute "commencement" of the District's post-registration acts of infringement. Finally, Plaintiff objects to the District's reliance on the self-serving declaration of Mark Richardson. That declaration contradicts Richardson's own pleadings in this matter, and may not be relied upon to defeat summary judgment. Knudsen, 254 F.3d at 752.

District's CSOF ¶ 9: The alleged date that Mark Richardson distributed and began rehearsing an arrangement of Plaintiff's work is irrelevant to the issue of when the District "commenced" infringement of Plaintiff's work. First of all, rehearsals do not constitute "public performances," and therefore

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do not constitute commencement of the District's public performances, which the District admits began on September 5, 2002. (District's Response to Plaintiff's MSJ, p. 3). Second, neither Richardson nor the District have alleged that Richardson's acts were performed in the course and scope of his employment with the District, so those acts cannot be ascribed to the District. Third, as set forth in Plaintiff's Reply to the District's Response to Plaintiff's MSJ,

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the Richardsons' alleged pre-registration acts of infringement did not constitute

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"commencement" of the District's post-registration acts of infringement. Finally, Plaintiff objects to the District's reliance on the self-serving declaration of Mark Richardson. That declaration contradicts Richardson's own pleadings in this matter, and may not be relied upon

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to defeat summary judgment. Knudsen, 254 F.3d at 752. II. MOTION TO STRIKE

The only documentary proof independently relied upon by the District in support of its response to Plaintiff's MSJ is the sworn declaration of co-defendant Mark Richardson. That declaration contradicts Richardson's pleadings in this matter, and therefore may not be relied

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upon to defeat summary judgment. Knudsen v. United States, 254 F.3d 747, 752 (8th Cir.2001) (holding that a party's later affidavit contradicting his pleading and deposition testimony cannot create a genuine issue of fact for purposes of summary judgment).2 On May 18, 2004, before Richardson was a defendant in this lawsuit, and while he and

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the District were still concealing the fact that there had been a "sale" of an unauthorized arrangement of Plaintiff's work, the District's attorney asserted in written correspondence that "there was no `arranger' and there was no `custom arrangement,'" and that "[i]nstead, District employee Mark Richardson modified the duly purchased score to facilitate its use by his students in accordance with the fair use guidelines."3 Later, when Richardson himself became a defendant in this litigation, he adopted this same story in his answer to Plaintiff's complaint, specifically denying that he created an "arrangement" of Plaintiff's work4 and alleging that his

See also Soo Line R. Co. v. St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir.1997). ("[A] party is bound by what it states in its pleading . . . [A]lthough the rule smacks of legalism, judicial efficiency demands that a party not be allowed to controvert what it has already unequivocally told a court by the most formal and considered means possible.") See Exhibit "B," Plaintiff's Motion for Summary Judgment. Richardson's Answer to Plaintiff's Second Amended Complaint at ¶¶ XI, XV

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preparation of the sheet music utilized by the Corona band amounted only to "editing" of a "duly purchased score."5 Obviously, Mark Richardson can't have it both ways. Either he "edited" a "duly

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purchased copy of the score," or he created a "musical arrangement." But more importantly,
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the fact that Richardson's declaration controverts his prior pleadings in this matter renders the
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declaration incompetent and improper for purposes of defeating Plaintiff's motion for summary
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judgment. Knudsen, 254 F.3d at 752.
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For the foregoing reasons, Plaintiff requests that the Court strike Richardson's
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declaration in its entirety.
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Dated this 6th 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

Id. at ¶¶ XI, XV, and p. 10 (affirmative defenses).

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CERTIFICATE OF SERVICE I certify that on September 6, 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 6, 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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