Steinbuch v. Hachette Book Group

Filing 48

NOTICE by Hachette Book Group re 47 Response to Motion (Anderson, Philip)

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LEvINE SuLLIvAN KOCH & ScHuLz, WASHINGTON, D.C. NEw L.L.P. DENvER 1050 SEVENTEENTH STREE N.W. WASHINGTON, D.C. 20036 Yoluc PHIIELPHIA (202) 508-1100 PHONE (202) 861-9888 FAx www.lslcslaw.com WRrrElt's DmECr DiM. 202-508-1184 nsiegelŽlsksiaw.com July 6, 2009 VIA ECF AND HAND DELIVERY The Honorable J. Leon Holmes Chief Judge United States District Court Richard Sheppard Arnold U.S. Courthouse 600 West Capitol Avenue Little Rock, AR 72201-3325 Re: Robert Steinbuch v. Hachette Book Group Case No: 4-08-CV-000456 JLH Dockets.Justia.com Dear Judge Holmes: We have received Plaintiffs Response to Hachette's Motion for Leave to File a Sur Reply [Dkt. No. 47]. The Response would appear to be moot, since six days before it was filed the Court had granted the motion to which Plaintiff now responds. If the Court were nonetheless to consider the Response, we note that, for the most part, Plaintiff merely repeats arguments that the parties have already addressed. In addition, Plaintiff raises a new argument for the first time. Plaintiff now argues that Arkansas law automatically determines the statutes of limitation for his claims. Plaintiff argues that Ganey v. Kawasaki Motors Corp., U.S.A., 366 Ark. 238, 234 S.W.3d 838 (2006), merely applied a narrow, pre existing exception to the traditional rule that statutes of limitation should be considered "procedural" for choice of law purposes. That exception, previously recognized in Gomez v. ITT Educational Services, Inc., 366 Ark. 238,71 S.W.3d 542 (2002), had been confined to cases where the underlying "cause of action" was "created by a statute that also contained the statute of limitations", Pl.'s Resp. at 6. Plaintiff asserts Ganey was merely another example of such a case. Id. However, Plaintiff argues that Ganey is inapplicable to this case because Plaintiff's claims against Hachette involve common-law causes of action, so Arkansas courts would automatically apply the applicable Arkansas statutes of limitation as a matter of "procedure." Plaintiff's argument is all based on an inaccurate characterization of Ganey. Ganey involved claims for negligence, breach of warranties, strict products liability, and civil conspiracy. These were not claims in which a limitations periods was embedded within the same statute that also created these causes of action, under either Arkansas or Louisiana law. Rather, the statutes of limitations at issue in Ganey were generic, applying to many different causes of action, similar to the D.C. and Arkansas statutes at issue in this case. Indeed, Plaintiffs logic LEVINE SuLLIvAN KOCH & SCHuLz, The Honorable J. Leon Holmes July 6, 2009 Page 2 L.L.P. would seem to require the conclusion that, uniquely among the states, all Louisiana statutes of limitation are always entitled to "substantive" consideration by Arkansas courts because Louisiana is not a common-law state. Nothing in the language of Ganey or any other authority of which we are aware supports that proposition. Rather, the Court in Ganey quoted Gomez as a prior example of the broader proposition that "there is no merit to the [1 claim that Arkansas law automatically applies to an issue involving the applicable statute of limitations," id at 250, which is the very proposition Plaintiff now asserts with respect to this case. More broadly, Ganey clarified that Arkansas choice-of-law rules no longer mechanically adhere to the traditional categorical approaches that were still preferred in Gomez and other prior cases, and which Plaintiff asserts should still be used. Id. at 251. Notably, another leading authority does not construe Ganey as merely applying the same scenario considered in Gomez. Rather, it cites Ganey for the proposition that Arkansas now employs "a more flexible choice of law analysis which can lead to the application of foreign law [with respect to statutes of limitation]," analogous to the approach taken by the Restatement (Second) of Conflict of Laws. See 2 Ark. Prac. & Proc. § 6:4 & n. 16. Finally, Hachette requests that the issues raised in Plaintiffs Motion for Leave to Amend be deemed submitted for resolution by the Court. Respectfully yours, LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. By Is! Nathan Siegel Nathan Siegel WILLIAMS & ANDERSON P.C. By Is! Philip S. Anderson Philip S. Anderson cc: Professor Robert Steinbuch (via e-mail and regular mail)