Pryor and Steward - Everlast Copyright Infringement

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8/13/2019 Pryor and Steward - Everlast Copyright Infringement http://slidepdf.com/reader/full/pryor-and-steward-everlast-copyright-infringement 1/18 2 3 4 5 6 7 8 9 10 II 12 13 14 15 r 16 ~ 17 18 19 ~ 20 - ~ 211 ' §22] C ':) 8,,.1 c:::;J C .J g ~ r 8-- I ~14 \....I .u · ' .§; o- 2 27 28 LAW OFFICES OF COURTNEY M. COATES COURTNEY M. COATES, ESQ.--203448 2620 I Y nez Road, Ste. I 03 Temecula, CA 92591 Telephone: 95I) 595-8Il8 Facsimile: (951) 296-2I86 [email protected] Attorneys for PlaintitTs LORENZO PRYOR, TRENA STEWARD and KARLA RAY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA · n nr f011 ' z:D ..... r :llllc: 0,... ,...~ > ~ Z ' ' ~ 4 f "'" r-o- m ~ "" -1 on > ,...o C:: ;"'::0 -1 f"-;) c::::::> <- c:: % . .J -o It c N -.J LORENZO PRYOR, TRENA STEWARD, and KARLA RAY aJ C V 3 0 4 44 Sc, L ~0. ffSt ~ Plaintiffs, v WARNER/CHAPPELL MUSIC, INC.; ERIC FRANCIS SCHRODY a/k/a EVERLAST; TOMMY BOY ENTERTAINMENT, LLC, formerly known as, TOMMY BOY RECORDS; T-BOY MUSIC, LLC, and DOES I-1 0, inClusive, Defendants. COMPLAINT FOR: 1. Copyright Infringement 2 Contributory Infringement 3 Vicarious Infringement DEMAND FOR JURY TRIAL) Plaintiffs Lorenzo Pryor, Trena Steward, and Karla Ray (hereinafter referred to as "Plaintiffs"), by and through their attorney, Law Offices of Courtney M. Coates, allege and complain as follows: NATURE OF THE ACTION 1. Plaintiffs seek to permanently enjoin Defendants from sampling C O M P L A I ~ T

Transcript of Pryor and Steward - Everlast Copyright Infringement

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LAW OFFICES OF COURTNEY M. COATESCOURTNEY M. COATES, ESQ.--2034482620 I Y nez Road, Ste. I 03Temecula, CA 92591Telephone: 95I) 595-8Il8

Facsimile: (951)296-2I86

[email protected]

Attorneys for PlaintitTsLORENZO PRYOR, TRENA STEWARD andKARLA RAY

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

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LORENZO PRYOR, TRENASTEWARD, and KARLA RAY

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Plaintiffs,

v

WARNER/CHAPPELL MUSIC,INC.; ERIC FRANCIS SCHRODYa/k/a EVERLAST; TOMMY BOY

ENTERTAINMENT, LLC, formerlyknown as, TOMMY BOYRECORDS; T-BOY MUSIC, LLC,and DOES I-1 0, inClusive,

Defendants.

COMPLAINT FOR:

1. Copyright Infringement

2 Contributory Infringement

3 Vicarious Infringement

DEMAND FOR JURY TRIAL)

Plaintiffs Lorenzo Pryor, Trena Steward, and Karla Ray (hereinafter

referred to as "Plaintiffs"), by and through their attorney, Law Offices of Courtney

M. Coates, allege and complain as follows:

NATURE OF THE ACTION

1. Plaintiffs seek to permanently enjoin Defendants from sampling

C O M P L A I ~ T

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Plaintiffs' original copyrighted music and sound recording, Bumpin' Bus Stop,

which constitutes copyright infringement under the laws of the United States. The

act of music sampling is the act of taking a portion, or sample of one sound

recording and reusing it as an instrument or a sound recording in a different song

or piece. Defendants have engaged in the repeated willful infringement of

Plaintiffs' copyrighted music in the infringing record, Get Down. As alleged

herein, Defendants have willfully refused to clear samples of Plaintiffs' original,

copyrighted work in order to gain a commercial profit and to avoid paying and

crediting the author.

JURISDICTION AND VENUE

2 This action arises under the Copyright Act of 1909, which was

superseded and/or amended by the Copyright Act of 1976 (the ''Copyright Act ).

This Court has jurisdiction pursuant to 28 U.S.C. Sees. 1331, 1332 and 1338, 17

U.S.C. Sec. 101 etseq

3 The venue of this action is properly laid in the Central District of

California pursuant to 28 U.S.C. Sees. 139l(b) and (c), 1392 and 1400(a). Upon

information and e l i e f ~ each of the Defendants has been transacting and continues

to transact business in the State of California and elsewhere interstate commerce,

or transacts business that atTects such commerce, and has been committing and

continues to commit the acts complained of herein in the State of California and

elsewhere in interstate commerce, and regularly has been and now does business

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COMPL INT

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and solicits business and derives substantial revenue from the sale and licensing o

creative properties and other products and services sold, used or consumed in the

State o California, including the musical composition and recording, and

elsewhere in interstate commerce. The defendants expected or should have

reasonably expected their acts, including the acts set forth above and complained

o herein, to have consequences in the State o California.

THE P RTIES

4 PlaintiffTrena Steward is an individual having a residence in San

12Diego, California. She holds a 23.23% ownership interest in the song entitled,

11 Bumpin' Bus Stop, written and recorded by her deceased father, David Pryor, o

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the music group, Thunder & Lightning.

5 Plaint itT Lorenzo Pryor is an individual having a residence in San

Diego, California. He holds a 23.44% ownership interest in the song entitled,

Bum pin· Bus Stop, written and recorded by his deceased father, David Pryor, o

20 the music group, Thunder & Lightning.

21 6. Karla Ray is an individual having a residence in Oklahoma. She

holds a 24.44% ownership interest in the song entitled, Bumpin' Bus Stop,23

24 written and recorded by her deceased father, David Pryor, o the music group,

25 Thunder & Lightning.

267 Plaintiffs are informed and believe, and based thereon allege, that at

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28 all times relevant hereto:

COMPL INT

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a. Erik Francis Schrody aka Everlast is an American singer and

songwriter, as the front-man for rap group House of Pain. He was also part of the

hip-hop supergroup La Coka Nostra, which consists of members of House of Pain

and other rappers. Defendant Schrody resides in New York, New York. Everlast

is a three-time Grammy award-winning producer and recording artist, having been

affiliated with some of the best selling music in history.

b Defendant Warner/Chappell Music, Inc. is an American music publishing

company and subdivision of Warner Music Group, which engages in the business

of music publishing, music production, and music distribution. Warner/Chappell

maintains an office in Santa Monica, California.

c. Defendant T-Boy Music, Inc. is an American music publishing company

and subdivision of Tommy Boy Entertainment, LLC, which engages in the

business of music publishing, music production, and music distribution. T-Boy

Music and Tommy Boy Entertainment are based in New York, New York.

8 Defendant Schrody, Warner/Chappell Music, T-Boy Music, and

Tommy Boy Entertainment are hereinafter referred to collectively as

Defendants.

F CTU L B CKGROUND

9 Plaintiffs are the heirs of David Pryor, a musician, composer, and

recording artist ( Pryor ), who wrote and recorded the musical composition,

entitled Bumpin' Bus Stop (also referred to herein as Plaintiffs' Song ).

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COMPLAINT

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10. On or about 1974, Pryor wrote and recorded a musical composition

entitled "Bumpin' Bus Stop," which features Pryor's recorded vocal performance

of the following lyrics: Get Down." Plaintiffs' Song was originally recorded and

vocally performed by Pryor in a sound recording he released in 1974. Thereafter,

Plaintiffs' Song was federally registered by music publisher, Caesar's Music

Library, in January 1974 IReg. No. Eu563138 (Bumpin' Bus Stop, Pt. 1 and Reg.

No. Eu563139 (Bumpin ' Bus Stop, Pt. 2)]. Subsequently, Plaintiffs' Song was

federally registered by record labeL Private Stock Records, on January 10, 1975

2 Reg. No. N207401.

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11. On or about January 7, 2004, Pryor was admitted to a skilled

nursing facility, where he suffered from numerous incapacitating health conditions,

including without limitation, cerebrovascular disease, prostate cancer, Parkinson's

disease, senile dementia, diabetes, and epilepsy. In 2004, the Probate Division of

the Circuit Court of St. Louis County, Missouri, appointed a conservator for David

Pryor. Mr. Pryor died in May 14, 2006 in a skiLled nursing facility. The primary

cause of death was cerebrovascular disease. Prior to his death, Pryor was mentally

disabled, unaware, and did not discover any acts of infringement by Defendants.

12. On or about June 17, 20 ll , the Probate Division of the Circuit Court

of St. Louis County, Missouri, entered a Judgment Determining Heirs, granting

ownership rights in and to Bumpin' Bus Stop" to the following family members:

Trena Steward, Lorenzo Pryor, Karla Ray, Shei la Hines, and Margaret Pryor.

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COMPL INT

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Accordingly, Plaintiffs are the successors-in-interest and joint owners to Bumpin'

Bus Stop. Upon Plaintiffs making a reasonable inquiry, neither Caesar's Music

Library nor Private Stock Records had a written agreement signed by David Pryor

evidencing their right to either own, publish, distribute, or administer any rights in

and to Bumpin' Bus Stop.

13. Nonetheless, to resolve any dispute with Plaintiffs over such

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ownership rights, on August 16, 2011, Caesar's Music Library assigned to

Plaintiffs any and all of its claimed rights, title, and interest in and to Bumpin'

Bus Stop in exchange for a release of claims. On October 16,2012, Private Stock

Records assigned to Plaintiffs any and all of its claimed rights, title, and interest in

and to Bum pin' Bus Stop in exchange for a release of claims( Assignment of

Copyright and Release ).

14. Within the last three years, Plaintiffs have discovered that Caesar's

Music Library, without authorization from David Pryor or his successors-in-

interest, entered into a Sample Agreement, dated June 16, 1998, with T -Boy Music

to sample the musical composition written for Bump n' Bus Stop. Caesar's Music

neither warranted nor represented that it was the owner of the original sound

recording to Bumpin' Bus Stop. Moreover, in order to sample the sound recording

in Plaintiffs' Song, T-Boy Music was required to obtain a separate license to use

the sound recording (not just the musical composition) but failed to do so. In fact,

the Sample Agreement does not even purport to grant rights in the sound recording

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COMPL INT

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but only the musical composition, which are separate and distinct copyrightable

subject matter. Notwithstanding the foregoing, Plaintiffs are informed and believe

that T-Boy Music gave unauthorized permission to Tommy Boy Entertainment and

Warner/Chappell Music to illegally sample the sound recording and musical

composition in and to Bumpin' Bus Stop by releasing an infringing record, entitled

Get Down, featuring Erik Schrody aka Everlast [Reg. No. PA 917-380, dated

October 21, 1998]. Although originally released in 1998, as part of the album,

entitled, hite_v· ord Sings the Blues the song Get Down has been repackaged,

republished, and converted into various new media and commercial formats,

including without limitation, the making of digital copies and licensing of digital

music through iTunes, Amazon, E-Bay, and on-line retail stores within the last

16three years.

17 15 Defendants knew or had reason to know that Caesar's Music Library

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was not the rights holder in the original sound recording to Bumpin' Bus Stop19

20 because the Sample Agreement executed by music publisher, Caesar's Music

21 Library, does not even purport to grant rights in and to the sound recording and no

22express warranties appear to be made in the Sample Agreement by Caesar's Music

24 Library concerning its ownership of the musical composition or sound recording.

25 Nor did Defendants ever obtain permission from Private Stock Records to sample

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28 16. Plaintiffs' Song is now the subject of existing Copyright Registration

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COMPLAINT

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Nos. V3612D942 and V3613D044, publicly recording the assignments made by

Caesar's Music and Private Stock, the Judgment Determining Heirs, and vesting

title to Plaintiffs' Song in the names of Lorenzo Pryor, Trena Steward, Margaret

Pryor, Shiela Hines, and Karla Ray ( Copyright ).

17. The music, lyrics, recorded vocal performance of David Pryor and

other creative elements of Bumpin' Bus Stop are wholly original and constitute

copyrightable subject matter under the Copyright Act. The Copyright has been

duly registered in the United States Copyright Office and all necessary recordation

and registration formalities and notice requirements under the Copyright Act have

been fully complied with. The Copyright was originally tiled for and obtained by

Caesar's Music Library. Copyright protection of Plaintiffs' Song was obtained

pursuant to the 1909 Copyright Act, which provided for an initial 28-year term of

copyright protection and a single 28-year renewal term of continued protection.

After an amendment of U.S. copyright law then in effect, this automatic renewal

term now has a period of sixty- seven (67) years. Upon Pryor's death and final

determination of his heirs in 2011, Pryor's renewals rights in Plaintiff's Song and

the Copyright passed to Plaintiffs.

FIRST CL IM FOR RELIEF

Copyright Infringement)

Against All Named Defendants)

18. Plaintiffs repeat and re-allege every allegation contained in paragraphs

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COMPL INT

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I through 7 as if fully set forth herein.

19. Plaintiffs have properly registered ownership and control ofthe

copyright and/or exclusive distribution rights to Plaintiffs Song, including Pryor's

recorded vocal performance therein.

20. Plaintiffs are informed, upon information and belief, that, without

authorization from any plaintiff, or right under law, Defendants have engaged in

copyright infringement of Plaintiffs Song. In so doing, they have unlawfully

sampled Plaintiffs Song, including David Pryor's recorded vocal performance in

12total disregard of the copyright laws.

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21. Upon information and belief, Defendants have collectively sold and/or

distributed over three 3) millions of copies of Get Down in various media

throughout the world, including but not limited to COs, DVDs, videocassettes,

digital downloads, video games, and ringtones. Upon further information and

belief, Defendants have licensed the infringing records for further recording and

various means of public performance, broadcast and webcast, including but not

limited to live performances, videos, games, radio, television, film, and the

Internet, including through one or more agents, including but not limited to BMI,

ASCAP and The Harry Fox Agency, Inc.

22. Plaintiff is informed and believes and on that basis alleges that the

Defendants have infringed and threaten to further infringe upon Plaintiffs Song by

being the source of the infringing records and aiding and abetting others in the

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COMPLAINT

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manufacturing, distributing, offering for sale and/or selling copies of, licensing,

and/or otherwise commercially exploiting the infringing records, and contributing

to the infringement of Plaintiffs Song by others, in the Central District of

California and elsewhere, all without the consent or authorization of Plaintiff or

anyone authorized to act on its behalf.

823. The marketing and sale of copies of the infringing records by the

9 Defendants and others with their aid and assistance, and/or as a direct result of

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their direct and contributory actions, constitutes an unauthorized distribution of

copies of Plaintiff s copyrighted works; and the public performance of the

infringing musical composition embodied in the infringing records by Defendants

constitutes unauthorized public per formance of Plaintiffs copyrighted works, all in

violation of Plaintiffs rights under the Copyright Act.

24. Plaintiffs are informed and believes and on that basis alleges that the

Defendants infringement of Plaintiff s copyrighted work has been and continues

to be carried out with Defendants full knowledge that Plaintiffs Song are

protected by copyright and that all relevant times Defendants had actual and

constructive knowledge of Plaintiff s rights but proceeded in complete disregard

thereof. In doing the acts complained of herein, Defendants have willfully and

intentionally infringed Plaintiffs copyright.

25. Plaintiffs have suffered and continue to suffer irreparable harm and

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COMPLAINT

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injury as a result of the aforesaid infringing acts of Defendants and Plaintiffs are

without an adequate remedy at law, in that damages are extremely difficult to

ascertain and, unless injunctive relief is granted as prayed for herein, Plaintiffs will

be required to pursue a multiplicity of actions.

26. Plaintiffs have sustained damages as a result of Defendants' wrongful

acts as hereinabove alleged. Defendants failed to credit David Pryor for the

samples taken and used in Get Down, resulting in enormous monetary damage

and loss of future earnings. Plaintiffs are presently unable to ascertain the full

extent of the money damages it has suffered by reason of said acts of copyright

infringement.

27. Plaintiffs are informed and believe and on that basis allege that

Defendants have obtained gains, profits, and advantages as a result of their

infringing acts as hereinabove alleged. Plaintiffs are present ly unable to ascertain

the full extent of the gains, profits, and advantages Defendants have obtained by

reason of their aforesaid acts of copyright infringement, but upon information and

belief such gains, profits, and advantages exceed. at least, the jurisdictional limit of

this court.

28. Within the last three (3) years, Defendants have continued to illegally

27exploit, re-release, re-package. and use Plaintiffs' Song, including live

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C O M P L I ~ T

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performances, distributing them worldwide in multiple formats, including without

limitation, compact disc, digital or on-line media.

29. Defendants conduct violated 7 U.S.C. § 106, and Defendants are

5 liable under 7 U .S.C. §50 I Defendants are actively involved in creating the

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supply of infringing content, making that content broadly available for distribution

to the public at large, and physically transmitting and distributing that infringing

content to third parties. Defendants further exercise active control over the

distribution process, regulating the volume and speed of transmissions to

consumers. For these reasons, among others, Defendants engage in active conduct

in unlawfully distributing Plaintiffs Song to their consumers.

30. Defendants are jointly and severally liable for each act of direct

infringement because they personally direct and participant in, and benefited from,

the infringing conduct as alleged herein.

19 31. Defendants Does 1-10 are likewise liable under the Copyright Act for

20the acts of infringement identified above for acting in concert to operate

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22Defendants and/or for infringing reproductions and distributions of plaintiffs

copyrighted works separately committed by defendants Does l-1 0.

2432. The foregoing acts of infringement by Defendants have been willful,

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26intentional and purposeful, in disregard of and indifferent to Plaintiffs rights.

27 33. As a direct and proximate result of Defendants infringement of

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COMPLAI1\iT

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plaintiffs' exclusive rights under copyright, plaintiffs are entitled to damages as

2well as Defendants' profits pursuant to 17 U.S.C. 504(b).

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4 34. Alternatively, Plaintiffs are entitled to the m ximum statutory

5 damages, in the amount of 150,000 per infringement, pursuant to 7 U.S.C.

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504( c), or for such other amount as may be otherwise proper under applicable law.

35. Plaintiffs further are entitled to their attorneys' fees and full costs

pursuant to 7 U .S.C. 505 or as may be otherwise proper under applicable law.

36. Defendants' conduct is causing, and unless enjoined and restrained by

this Court will continue to cause, Plaintiffs great and i rreparable injury that cannot

fully be compensated for or measured in money. Plaintiffs have no adequate

remedy at law. Pursuant to 7 U.S.C. 502, Plaintiffs are entitled to a preliminary

and permanent injunction prohibiting further infringements of their copyrights and

exclusive rights under copyright.

SECOND CL IM FOR RELIEF

(Contributory Copyright Infringement)

Against All Named Defendants)

21 37. Plaintiffs repeat and re-allege every allegation contained in paragraphs

through 36 as if fully set forth herein.

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2438. Plaintiffs, as the owners of the registered copyright in the original

25 musical composition and recording, have the exclusive right to authorize the

26performance, reproduction, and distribution of this work pursuant to 7 U.S.C.

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28106.

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COMPL INT

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39. Upon information and belief, Defendants have unlawfully copied,

2reproduced and/or distributed Plaintiffs ' Song by continuing to copy, release, re-

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4 package, and exploit the infringing record, ' Get Down.

5 40. Upon information and e l i e t ~ Defendants have caused or granted to

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various parties unauthorized licenses to reproduce, sample and/or distribute the

copyrighted work.

41. Defendants have willfully contributed to the infringement o

Plaintiffs' copyrights.

42. Plaintiffs are entitled to recover all damages sustained as a result o

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THIRD CLAIM FOR RELIEF

(Vicarious Infringement)

Against All Named Defendants]

43. Plaintiffs repeat and re-allege every allegation contained in paragraphs 1

through 49 as i fully set forth herein.

20 44. PlaintitTs are informed and believe that Defendants, at all times

21 relevant, had ( 1 the right and ability to supervise activity that directly infringes

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23a copyright; and (2) a direct financial interest in such activities.

4 45. Accordingly, Defendants are vicariously liable for the acts o one or

25 more o the other Defendants, which has caused damage to Plaintiffs according to

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COMPL INT

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7. For all other relief justified under the circumstances of this case.

DATED: Junel7 2013 LAW OFFICES OF COURTNEY M COATES

DEM ND OR JURY TRI L

Pursuant to Local Civil Rule 38-1 Plaintiffs hereby demands a

jury and respectfully reserve their right to a jury trial.

Dated: June 17 2013

COMPLAI \T

LAW OFFI ;s\OF COURTNEY M. COATES

B y ~OURTNEY M COATES ESQ.

Attorneys for Plaintiffs LORENZO PRYOR

TRENA STEWARD and KARLA RAY

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