Skidmore v. Led Zeppelin - motion withdraw admission of work for hire.pdf

8/18/2019 Skidmore v. Led Zeppelin - motion withdraw admission of work for hire.pdf

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1 NOTICE OF MOTION AND MOTION TO WITHDRAW ADMISSIONS

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Francis Malofiy, Esq.Francis Alexander, LLC280 N. Providence Rd. | Suite 105Media, PA 19063T: (215) 500-1000; F: (215) 500-1005

E: [email protected] Attorney for Plaintiff

Glen L. Kulik, Esq. (SBN 082170)Kulik Gottesman & Siegel LLP15303 Ventura Blvd., Suite 1400Sherman Oaks, CA 91403T: (310) 557-9200; F: (310) 557-0224E: [email protected]

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

MICHAEL SKIDMORE, as Trustee forthe RANDY CRAIG WOLFE TRUST,

Plaintiff,

v.

LED ZEPPELIN; JAMES PATRICKPAGE; ROBERT ANTHONY PLANT;JOHN PAUL JONES; SUPER HYPEPUBLISHING, INC.; WARNER MUSICGROUP CORP., Parent ofWARNER/CHAPPELL MUSIC, INC.;ATLANTIC RECORDING

CORPORATION; RHINOENTERTAINMENT COMPANY,

Defendants.

Case No. 15-cv-03462 RGK (AGRx)

Hon. R. Gary Klausner

NOTICE OF MOTION ANDMOTION TO WITHDRAW

ADMISSIONS; MEMORANDUM O

POINTS AND AUTHORITIES IN

SUPPORT THEREOF

Filed concurrently with Declaration ofFrancis Malofiy; and [Proposed] Order

Date: May 10, 2016

Time: 9:00 amCourtroom: 850

Case 2:15-cv-03462-RGK-AGR Document 152 Filed 03/26/16 Page 1 of 12 Page ID #:3684


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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on May 10, 2016, at 9:00 am, or as soo

thereafter as this matter can be heard before the Honorable R. Gary Klausner of th

United States District Court for the Central District of California, at 312 N. SprinStreet, Courtroom 850, Los Angeles, California, 90012, Plaintiff Michael Skidmor

Trustee for the Randy Craig Wolfe Trust, will move and hereby moves to withdra

the admissions Defendants are claiming have been admitted.

Plaintiff’s counsel notified defense counsel in motion practice that he intend

to file such a motion on March 7, 2016 ( Doc. No. 118-7 , at ¶27) and Defendants s

responded. ( Doc. No. 129-3). In addition, on March 24 and 25, 2016, Plaintiff

counsel attempted to initiate a meet and confer with defense counsel but was eithe

unable to reach counsel and later was told they were unavailable. Malofiy Decl.,

¶8.

This motion is based on the attached memorandum of points and authorities

support thereof, the declaration of Francis Malofiy in support thereof, and all file

and pleadings in this action.

Dated: March 26, 2016 FRANCIS ALEXANDER, LLC

/s/ Francis Alexander Malofiy

Francis Alexander MalofiyAttorneys for Plaintiff



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NOTICE OF MOTION AND MOTION TO WITHDRAW ADMISSIONS

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendants served requests for admissions on Plaintiff on December 4, 2015

See Malofiy Decl., at ¶2, Exhibit 1. The requests ask that Plaintiff admit that “The

Taurus Composition is a work for hire” and thus does not have standing to sue. Suc

a request for admission is contradicted by the applicable facts—which conclusively

demonstrate that Taurus was written well before the work made for hire contract—

and law which does not allow a work to retroactively be designated as “made for

hire.”

However, due to the fact that Plaintiff was injured in an accident in Decembe

2015, and Plaintiff’s counsel was traveling to London for depositions in the case at

bar, answers denying the admissions were not filed in 30 days pursuant to Federal

Rule of Civil Procedure 36. Plaintiff’s counsel, however, believed that Mr.

Anderson, as both sides were routinely providing discovery past the pertinent

deadlines, had implicitly granted Plaintiff an extension. In January 2016, defense

counsel and Plaintiff’s counsel has a discussion concerning the late answers and

Plaintiff’s counsel told defense counsel that Plaintiff would be providing answers.On February 5, 2016, before Plaintiff’s deposition, Plaintiff did serve responses to

the requests for admissions denying that Taurus is a work for hire. Defense counsel

had every opportunity to question and cross examine Plaintiff in regards to the

responses to the requests for admissions. Plaintiff notes that he is filing this motion

to withdraw to preserve his rights but that that he does not concede that the requests

for admission were formally deemed admitted under Rule 36.

In addition, at a meet and confer before the summary judgment motion was

filed, defense counsel never indicated they believed the admission were deemed

admitted and that that would a main basis on which they were asking for summary

judgment. Had Plaintiff known, this issue could have been addressed earlier.



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II.

FACTUAL BACKGROUND

Randy Craig Wolfe wrote the song Taurus in 1966 and performed it regularly

throughout 1967 in Los Angeles clubs with Spirit. On August 29, 1967, Wolfe

signed a contract with Hollenbeck Music providing that future music he wrotewould be a work made for hire. A copyright for Taurus was registered in 1968.

Defendants served requests for admissions on Plaintiff on December 4, 2016

asking that Plaintiff admit that Taurus was a work made for hire. Declaration of

Francis Malofiy, at ¶2. It is simply not true that Taurus is a work for hire. Such a

notion is contradicted by a vast amount of evidence which demonstrates that Tauru

was created not as a work for hire for Hollenbeck Music after the August 29, 1967

contract, but instead was created well before in 1966 and played widely at clubs in

Los Angeles in early to mid-1967. See Andrea Wolfe Decl., at ¶4-5 ( Doc. No. 118-

3); Janet Wolfe Decl., at ¶4-5 ( Doc. No. 118-4); Malofiy SJ Decl. ( Doc. No. 124),

Exhibit 8 – Andes Depo., p.150-156; Barry Hansen Decl. (Doc. No. 119-1), ¶1-2 &

Emails; Skidmore Decl. (Doc. No. 119-4), at ¶12; Brian Bricklin Decl. (Doc. No.

118-10), Audio Exhibits 33-36 (recordings of Taurus played live before August 29,

1967). A contract cannot retroactively designate preexisting material andcompositions as “made for hire.”. See Gladwell Govt. Services Inc. v. County of

Marin, 265 Fed. Appx. 624 2008 WL 268268 (9th Cir. 2008). In addition, Taurus

has never been registered with the Copyright Office as a work for hire, Mr. Wolfe

has always been listed as the author ( Doc. No. 97-11, at p.225), and the renewal

registration is in Mr. Wolfe’s name ( Doc. No. 31, Exhibit 1)—prima facie evidence

that he is a valid owner of the copyright.

Plaintiff, however, did not serve responses by January 4, 2016, because

Plaintiff was injured in an accident earlier in December 2015, because of the holida

season, and because Plaintiff’s counsel was preparing to travel to London for the

depositions of defendants James Patrick Page and John Paul Jones in early January

Declaration of Francis Malofiy, at ¶3. At some point in January 2016 defense



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counsel indicated that the responses were late and Plaintiff’s counsel responded tha

he would get him the answers. Id. at ¶4-5. Plaintiff’s counsel understood because o

this interaction that there was in fact an implicit extension to answer the requests fo

admissions. Id.

This understanding was also based on the fact that compliance withdiscovery by both parties had been lax (Defendants produced document discovery

over one and half months late), and that defense counsel had been provided informa

courtesies by Plaintiff to answer discovery after certain deadlines. Id. at ¶5.

Plaintiff did provide formal answers denying the requests for admissions on

February 5, 2016, before the start of Plaintiff’s deposition, so that Defendant could

fully question Plaintiff with respect to his answers. Id. at ¶6.

At a later meet and confer on February 18, 2016, in advance of the filing of

the summary judgment motion, defense counsel never disclosed that Defendants’

motion would be relying upon the position that requests for admission had been

deemed admitted. Id. at ¶7. However, Defendants’ motion for summary judgment

did claim that the requests were deemed admitted under Rule 36.

Although Plaintiff understood there was an extension to answer the admissio

and does not believe that any admissions were admitted, he is filing this motion outof an abundance of caution. It must be stressed that at all points Defendants were

aware that Plaintiff was opposing their work for hire argument, which is fatally

flawed as Taurus was created well in advance of the work made for hire agreement

Defendants are hoping to use a procedural technicality to dismiss an otherwise

meritorious case, something frowned upon by the pertinent case law.

III.

LEGAL STANDARD FOR WITHDRAWING ADMISSIONS

If a request for admission was answered, but there is a dispute as to whether

there was an extension of time to answer, the Courts favor not deeming the requests

admitted under Rule 36, especially if holding the requests as admitted would

foreclose an adjudication of the action on the merits. Lema v. City of Modesto,

No. 1:10-CV-02180 AWI, 2012 WL 439400, at *2 (E.D. Cal. Feb. 9, 2012).



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After a request for admission has been deemed admitted, a party can move to

withdraw the unanswered admissions (note Plaintiff has already answered the

admissions). Conlon v. U.S., 474 F.3d 616, 621 (9th Cir. 2007). When considering

motion to withdrawn admissions, the Court focuses on the two factors in Rule 36(b(1) whether allowing withdrawal will aid resolution of the case, and (2) whether the

propounding party can establish prejudice at trial if the admissions are withdrawn.

Conlon, 474 F.3d at 621. Notably, the Ninth Circuit has observed that a court

should not “foreclose the merits of controversies as punishment” unless the

“necessities of the situation” require it. Hadley v. U.S., 45 F.3d 1345, 1350 (9th Cir

1995).

“The first prong [of Rule 36(b)’s test for withdrawal of an admission], which

essentially asks if allowing the withdrawal will aid in the resolution of the case,

favors allowing [the party] to withdraw the admissions.” Gallegos v. City of Los

Angeles, 308 F.3d 987, 993 (9th Cir. 2002). Allowing withdrawal under the first

prong “is satisfied when upholding the admissions would practically eliminate any

presentation of the merits of the case.” Conlon, 474 F.3d at 622 (internal quotation

marks omitted). In essence, the Ninth Circuit states that cases should be decided onthe merits.

The second prong requires that Defendants demonstrate that they will be

prejudiced at trial if the deemed admissions are withdrawn. “‘The prejudice

contemplated by Rule 36(b) . . . relates to the difficulty a party may face in proving

its case,’ including problems ‘caused by the unavailability of key witnesses,’ or ‘the

sudden need to obtain evidence with respect to the questions previously deemed

admitted.'” Gallegos, 308 F.3d at 993 (quoting Hadley v. United States, 45 F.3d

1345, 1348 (9th Cir. 1995)); see also Conlon, 474 F.3d at 622. Inconvenience does

not amount to prejudice. See Conlon, 474 F.3d at 622-23.

“When undertaking a prejudice inquiry under Rule 36(b), district courts

should focus on the prejudice that the nonmoving party would suffer at trial .” Id. at



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623 (emphasis added) (citing Sonoda v. Cabrera, 255 F.3d 1035, 1039-40 (9th Cir.

2001)). The Conlon court noted that in the Sonoda case the motion to withdraw wa

made and granted before trial and did not hinder the opposing party’s ability to

present evidence. It is important to note that the Ninth Circuit has held that “reliancon a deemed admission in preparing a summary judgment motion does not

constitute prejudice.” Conlon, 474 F.3d at 623 (emphasis added). The Ninth Circu

also concluded that when deemed admissions resulted in another party choosing no

to engage in other discovery, it did not amount to prejudice. Id. It specifically noted

that under those circumstances the district court has the option of re-opening

discovery and reiterated that the prejudice in question must relate to the hardship th

party will suffer in proving its case at trial. Id.

IV. PLAINTIFF UNDERSTOOD THAT AN INFORMAL EXTENSION

WAS GRANTED BY DEFENDANTS

Defense counsel served the requests for admissions on December 4, 2016,

meaning they were due on January 3, 2016. However, given that the Holidays had

just passed, as well as Plaintiff was injured in an accident, and Plaintiff’s counsel

was flying to London for depositions, providing timely and accurate answers wasnot possible. Defense counsel subsequently did note that the responses were late in

January 2016 and Plaintiff’s counsel told them that the answer were coming.

Defense counsel never claimed that answering was unnecessary or that they viewed

the admissions as deemed admitted. Plaintiff’s counsel understood that an informal

extension had been given by defense counsel. This was especially so because

Plaintiff’s counsel had given defense counsel courtesies and leniencies in serving

discovery responses past the applicable deadlines.

Please note that under Rule 36, untimely answers are deemed automatically

admitted if not answered in thirty days. Thus, when defense counsel mentioned to

Plaintiff’s counsel that the answers were late and Plaintiff’s counsel stated that

answers would be provided without objection, this was interpreted as defense



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counsel affording Plaintiff an implicit extension to answer.

A district court in California has been confronted with a similar situation. In

Lema v. City od Modesto, the Court stated:

Here, the Court has before it two conflicting assertions with regard toany extension or extensions of time given regarding the discovery atissue. Simply stated, Defendant contends it gave a single thirty-dayextension of time whereby Plaintiff's responses became due no laterthan December 7, 2011. (Doc. 30 at 3.) On the other hand, Plaintiff'scounsel declares that at some point after receiving the thirty-dayextension of time, he and defense counsel spoke on the telephoneabout “an open extension of time” because Plaintiff's counsel wishedto “complete the demand and manage expenses.” Plaintiff's counselfurther declares that defense counsel agreed to his request. (Doc. 30 at

7.) The Court has carefully reviewed the numerous exhibits attachedto Defendant's motion (Doc. 24), and, on this record, is unwilling togrant Defendant's request. To do so would effectively evisceratePlaintiff's action. (See Doc. 24, Ex. E.)

1:10-CV-02180 AWI, 2012 WL 439400, at *2 (E.D. Cal. Feb. 9, 2012). Here, there

is also a dispute about whether there was an extension to answer the requests for

admission and the defendants are also attempting to terminate Plaintiff’s action with

the deemed admissions.Based on the courtesies that were being extended between counsel, and the

nature of interactions between counsel implying that Plaintiff could still answer the

requests for admissions, the requests should not be considered deemed admitted

under Rule 36.

V. IF THE REQUESTS ARE DEEMED ADMITTED, THE COURT

SHOULD ALLOW THE ADMISSIONS TO BE WITHDRAWN

Even if the requests for admission are deemed admitted by the Court, Plaintif

should be permitted to withdraw them. In determining whether to allow deemed

admissions to be withdrawn the Court should focus on the factors of whether (1)

withdrawal will favor resolution of the case on the merits, and (2) allowing

withdrawal will cause the opposing party prejudice at trial. See FRCP 36.



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Withdrawal should be permitted here because it will favor the resolution of this cas

on the merits and because Defendants can identify no prejudice they will suffer at

trial.

With respect to the first prong, withdrawal will favor resolution of this case othe merits. Plaintiff adamantly denies that the work in question is a work made for

hire as it was created in 1966 well before the work for hire contract in August 1967

It is basic law that a work for hire contract cannot retroactively designate a work as

made for hire. See Gladwell Govt. Services Inc. v. County of Marin, 265 Fed. Appx

624 2008 WL 268268 (9th Cir. 2008); see also Playboy Enters., Inc. v. Dumas, 53

F.3d 549, 558-59 (2d Cir .1995); Schiller & Schmidt, Inc. v. Nordisco Corp., 969

F.2d 410, 412-13 (7th Cir. 1992) (“The writing must precede the creation of the

property” to qualify as a work-for-hire agreement.). The Ninth Circuit also cautions

that not allowing withdrawal on a dispositive issue is a severe punishment that

should only be invoked when absolutely necessary. Hadley, 45 F.3d 1345 at 1350.

As allowing withdrawal will benefit the resolution of this case on the merits, and no

allowing withdrawal may eviscerate the action, the first prong favors Plaintiff.

With respect to the second prong, Defendants cannot show any prejudice attrial. It is crucial to keep in mind that “reliance on a deemed admission in

preparing a summary judgment motion does not constitute prejudice.” Conlon

474 F.3d at 623 (emphasis added). Defendants’ argument for why Taurus is

allegedly a work for hire is based on the relatively undisputed facts in the record tha

Taurus was registered after the work for hire contract was signed. Under the 1909

1 Defendants are advancing the legally unsupported argument that a work that was formallycopyrighted after a work for hire agreement is a work for hire under the 1909 Act. But the pertinent rule is that the work made for hire contract must exist before the material inquestion. Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 412-13 (7th Cir. 1992)(“The writing must precede the creation of the property” to qualify as a work-for-hireagreement.). Taurus was written and created well before the work made for hire agreement. In addition, the copyright for Taurus was renewed in Randy Wolfe’s name which prima facieestablishes that he is a valid owner and that it is not work for hire. ( Doc. No. 31, Exhibit 2).In fact, since 1968 Mr. Wolfe has been listed as the author of the Taurus copyright. ( Doc. No.97-11, at p.225)



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Act registration affords copyright protection, as opposed to the 1976 Act.

Defendants’ work made for hire argument claims that as long as a work was

registered after a work made for hire contract, it is a work for hire under the 1909

Act. This is primarily a legal argument—albeit erroneous. Thus, it is hard to see hoDefendants will be prejudiced at trial if the admissions are withdrawn. They will sti

be fully able to present their argument.

Defendants claim that allowing withdrawal will somehow cause them

prejudice because they neglected to depose Lou Adler, who owns Hollenbeck

Music. Doc. No. 129-3, at ¶13. But this argument missed the mark by many miles a

Adler has been known to both sides since the beginning of this litigation, was on

both parties’ initial disclosures, and Defendants subpoenaed Adler’s companies for

documents but deliberately chose not to depose him. Id. at ¶3. It also must not be

forgotten that under Conlon the failure of Defendants to depose Adler cannot

constitute prejudice because it does not speak to prejudice Defendants would suffer

at trial. Conlon, 474 F.3d at 623 (concluding that when deemed admissions resulted

in the opposing party choosing not to engage in other discovery it does not constitu

prejudice for purposes of a motion to withdraw).As Defendants’ work for hire argument is namely one of legal interpretation,

with sufficient facts in the record—and because Defendants were well aware of this

issue and the pertinent witnesses for the entirety of the discovery period and in fact

did conduct discovery into this question—there will be no prejudice to Defendants

trial if the admissions in question are withdrawn.

Thus, both prongs under Rule 36(b) favor allowing withdrawal of the deemed

admissions (if the requests were in fact deemed admitted). Plaintiff notes that he

answered the admissions within the discovery period, believed he had an informal

extension to answer from defense counsel, and otherwise cooperated extensively in

discovery.



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VI.

CONCLUSION

For the foregoing reasons, Plaintiff respectfully request that the Court either

rule that the admission were not deemed admitted or grant the instant motion to

withdraw admissions.

Dated: March 26, 2016 FRANCIS ALEXANDER, LLC

/s/ Francis Alexander Malofiy

Francis Alexander Malofiy, Esq.Attorney for Plaintiff



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CERTIFICATE OF SERVICE

Plaintiff hereby represents that Plaintiff’s Motion to Withdraw Admissions has been serv

upon counsel by email:

Helene Freeman, Esquire 666 Fifth Avenue New York, NY 10103-0084T: (212) 841-0547F: (212) 262-5152E: [email protected] Attorneys for Defendants James Patrick Page, Robert Anthony Plant, and John Paul Jone

(collectively with John Bonham (Deceased), professionally known as Led Zeppelin)

Peter J. Anderson, Esquire

100 Wilshire Blvd. | Suite 2010Santa Monica, CA 90401T:(310) 260-6030F: (310) 260-6040E: [email protected] Attorney for Defendants Super Hype Publishing, Inc., Warner Music Group Corp.,

Warner/Chappell Music, Inc., Atlantic Recording Corporation, and

Rhino Entertainment Company

***** Respectfully submitted,

Francis Alexander, LLC

/s/ Francis Alexander MalofiyFrancis Alexander Malofiy, EsquireAttorney ID No.: 208494280 N. Providence Road | Suite 105Media, PA 19063T: (215) 500-1000F: (215) 500-1005E: [email protected]

/d/ March 26, 2016


Skidmore v. Led Zeppelin - motion withdraw admission of work for hire.pdf

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Transcript of Skidmore v. Led Zeppelin - motion withdraw admission of work for hire.pdf