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 AAPA's STATEMENT OF FACTS and MOTION TO STRIKE SUMMARY JUDGMENT EVIDENCE

Plaintiff files this response to Defendant Arizona Academy for the Performing Arts' (AAPA) Statement of Facts ("SOF"), and moves that the Court strike the affidavit of Mark Richardson attached as Exhibit "1" to the AAPA's SOF. I. AAPA's SOF ¶ 1: Plaintiff's work, "The Big Apple," was first published on April 1, 1994. Plaintiff's Response: Undisputed. PLAINTIFF'S RESPONSES

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AAPA's SOF ¶ 2: The earliest date of Plaintiff's registration of copyright for "The Big Apple" is July 6, 2002. Plaintiff's Response: The AAPA's characterization is inaccurate and misleading. July 6, 2005 is the effective date of the U.S. registration of "The Big Apple." It doesn't not constitute the "earliest registration date" for the work. AAPA's SOF ¶ 3: Preparation of the musical arrangement that Plaintiff has alleged is an unauthorized derivative work of "The Big Apple" was authorized by William D. Richardson in the spring of 2002. [M. Richardson Decl. ¶¶ 3-4]. Plaintiff's Response: The alleged date that William Richardson authorized the creation of the referenced musical arrangement is irrelevant. Mark Richardson has specifically averred that the AAPA had nothing to do with that conduct. (Richardson Decl. ¶¶ 7-8). Moreover, Plaintiff objects to the AAPA's reliance on Richardson's self-serving declaration, which contradicts Richardson's own pleadings, and therefore may not be relied upon to defeat summary judgment. Knudsen v. United States, 254 F.3d 747, 752 (8th Cir.2001). AAPA's SOF ¶ 4: Preparation of the musical arrangement that Plaintiff has alleged is an unauthorized derivative work of "The Big Apple" commenced by the end of April, 2002. [M. Richardson Decl. ¶ 5]. Plaintiff's Response: The alleged commencement date of the preparation of the referenced musical arrangement is irrelevant. Mark Richardson has specifically averred that the AAPA had nothing to do with that conduct. (Richardson Decl. ¶¶ 7-8). Moreover, Plaintiff objects to the AAPA's reliance on Richardson's self-serving declaration, which contradicts Richardson's

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own pleadings, and therefore may not be relied upon to defeat summary judgment. Knudsen, 254 F.3d at 752. AAPA's SOF ¶ 5: Preparation of the musical arrangement that Plaintiff has alleged is an unauthorized derivative work of "The Big Apple" was substantially complete by the first week of June, 2002. [M. Richardson Decl. ¶ 6]. Plaintiff's Response: The alleged completion date of the referenced musical arrangement is irrelevant. Mark Richardson has specifically averred that the AAPA had nothing to do with that conduct. (Richardson Decl. ¶¶ 7-8). Moreover, Plaintiff objects to the AAPA's reliance on Richardson's self-serving declaration, which contradicts Richardson's own pleadings, and therefore may not be relied upon to defeat summary judgment. Knudsen, 254 F.3d at 752. II. MOTION TO STRIKE

Exhibit "1" to the AAPA's Statement of Facts ­ the sworn declaration of co-defendant Mark Richardson - contradicts Richardson's pleadings in this matter, and therefore may not be relied 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).1 On May 18, 2004, before Richardson was a defendant in this lawsuit, and while he and 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

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"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

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.")

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students in accordance with the fair use guidelines."2 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 work3 and alleging that his preparation of the sheet music utilized by the Corona band amounted only to "editing" of a "duly purchased score."4 Obviously, Mark Richardson can't have it both ways. Either he "edited" a "duly purchased copy of the score," or he created a "musical arrangement." But more importantly, 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 judgment. Knudsen, 254 F.3d at 752. For the foregoing reasons, Plaintiff requests that the Court strike Richardson's 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

See Exhibit "B," Plaintiff's Motion for Summary Judgment. Richardson's Answer to Plaintiff's Second Amended Complaint at ¶¶ XI, XV 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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