Free Motion for Miscellaneous Relief - 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 Pursuant to Rule 54.1(c) of the Rules of Practice of the United States District Plaintiff, ARIZONA ACADEMY FOR THE PERFORMING ARTS, INC.'S APPLICATION FOR SECURITY Tempe Union High School District, Corona Del FOR COSTS 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, v. Defendants. No. CIV 04-0341 PHX RCB UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

23 Court for the District of Arizona, Defendant Arizona Academy for the Performing Arts, 24 Inc. ("the Academy") respectfully requests this Court to order Plaintiff, Johan de Meij, 25 d/b/a Amstel Music, BV, to post a bond in an amount not less than $50,000.00 as security 26 for costs incurred and to be incurred by the Academy in this litigation. The Academy 27 also requests this Court to order Plaintiff to post the aforementioned bond within 14 days 28 of the court's order. This application is supported by the following Memorandum.
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Memorandum Rule 54.1(c) of the Rules of Practice of the United States District Court for the District of Arizona provides that: In every action in which the plaintiff was not a resident of the District of Arizona at the time suit was brought, or, having been so, afterwards removed from this District, an order for security for costs may be entered upon application therefor within a reasonable time upon notice. In default of the entry of such security at the time fixed by the Court, judgment of dismissal shall be entered on motion. Complaint, ¶ 1] Indeed, he is not even a resident of the United States. [Id.] Local Rule Plaintiff is not a resident of the District of Arizona. [Plaintiff's Second Amended

54.1(c) was written with just such plaintiffs in mind, who will be beyond the enforcement powers of the Court should an award of costs be ordered at the conclusion of this lawsuit. The Academy's letter requesting that Plaintiff voluntarily post a bond, and providing notice that this application would follow if he refused, is attached at Tab A. Section 505 of the Copyright Act expressly provides for the "award [of] reasonable attorney's fee[s] to the prevailing party as part of the costs." 17 U.S.C. § 505. The requested bond includes a conservative request for attorney's fees because

Moreover, Plaintiff has already twice rejected an Offer of Judgment pursuant to Fed. R. Civ. P. 68. The Academy's last Offer of Judgment is attached at Tab B. Under Rule 68: "[i]f the judgment finally obtained by the [plaintiff] is not more favorable than Rule 68, "costs" includes attorney's fees when the underlying statute permits a court to already mentioned, 17 U.S.C. § 505 permits the inclusion of attorney's fees as "costs." In this case, any bond pursuant to LRCiv 54.1(c) should cover fees and costs. Finally, a security bond of $50,000.00 is not unreasonable considering the manner in which this case is being pursued. Fundamentally, the case should be nothing more than a simple copyright infringement action centered on the unauthorized performance of Plaintiff's song by a high school band at one season of football games and competitions.
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the offer, the offerree must pay the costs incurred after the making of the offer." Under award attorney's fees as part of the "costs." Marek v. Chesney, 473 U.S. 1, 9 (1985). As

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Unfortunately, Plaintiff has insisted on adding claims based on unfair competition, § 1983, and the federal RICO statute. Plaintiff has chosen a far more complicated

litigation strategy than the Academy believes is justified or reasonable, which for the most part may be his choice to make. However, that strategy necessarily increases the costs associated with defending the suit. All told, a $50,000 bond is conservative and is supported by both the Copyright Act and the Federal Rules of Civil Procedure. Conclusion For the foregoing reasons, the Academy requests this Court grant this application and order Plaintiff to post a bond with the Clerk of the United States District Court for the District of Arizona in an amount not less than $50,000.00 as security for costs. The Academy also requests that the Court order Plaintiff to deposit such security within fourteen days of issuance of the order. Dated: August 17, 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 August 17, 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: 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 I hereby certify that on August 17, 2005, I served the attached document by email to: The Honorable Robert C. Broomfield [email protected] United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, Suite 216, SPC 61 Phoenix, Arizona 85003-2118

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I hereby certify that on August 17, 2005, I served the attached document by first class mail on the following, who are not registered participants of the CM/ECF System: Thomas K. Irvine IRVINE LAW FIRM 1419 North Third Street, Suite 100 Phoenix, Arizona 85004 Attorneys for Defendant Arizona Music Educators Association Arizona Music Educators Association c/o John C. Faris 4312 West Royal Palm Road Glendale, Arizona 85302-6625 R. Buck McKinney LAW OFFICE OF BUCK MCKINNEY Post Office Box 6231 Austin, Texas 78762-6231 Attorney for Plaintiff 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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