Arista Records LLC et al v. Lime Wire LLC et al

Filing 33

RESPONSE to Motion re: 27 MOTION to Amend/Correct ("Notice Of Motion For Leave To File An Amended Complaint"). MOTION to Amend/Correct ("Notice Of Motion For Leave To File An Amended Complaint"). (Response and Withdrawal of Opposition). Document filed by Lime Wire LLC, Lime Group LLC, Mark Gorton, Greg Bildson. (Baker, Charles)

Download PDF
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ARISTA RECORDS LLC; ATLANTIC RECORDING CORPORATION; BMG MUSIC; CAPITOL RECORDS, INC.; ELEKTRA ENTERTAINMENT GROUP INC.; INTERSCOPE RECORDS; LAFACE RECORDS LLC; MOTOWN RECORD COMPANY, L.P.; PRIORITY RECORDS LLC; SONY BMG MUSIC ENTERTAINMENT; UMG RECORDINGS, INC.; VIRGIN RECORDS AMERICA, INC.; and WARNER BROS. RECORDS INC., ECF CASE 06 CV. 5936 (GEL) DEFENDANTS'/ COUNTERPLAINTIFF'S RESPONSE AND Plaintiffs/Counterclaim Defendants, WITHDRAWAL OF OPPOSITION TO v. PLAINTIFFS'/COUNTERCLAIM DEFENDANTS' MOTION FOR LIME GROUP LLC; MARK GORTON; and LEAVE TO FILE AN AMENDED GREG BILDSON, COMPLAINT Defendants, and LIME WIRE LLC, Defendant/Counterclaim Plaintiff. Defendant/Counter-Plaintiff Lime Wire LLC and Defendants Lime Group LLC, Mark Gorton, and Greg Bildson (collectively, "Defendants") respond to Plaintiffs/Counterclaim Defendants' Motion for Leave to File an Amended Complaint and supporting memorandum as follows: On June 20, 2007, after the deadlines for joinder and amending pleadings, Plaintiffs/Counterclaim Defendants ("Plaintiffs") requested leave of Court to amend their complaint to add new claims and a new party. Specifically, Plaintiffs seek to add a claim for fraudulent transfer under Section 276 of the New York Debtor and Creditor Law against Defendant Mark Gorton ("Gorton"). They also seek leave to join as a defendant the M.J.G. Lime Wire Family Limited Partnership ("MJG"), of which Gorton is general partner, and assert a claim for common law unjust enrichment against MJG. When asked whether they would oppose the Motion, Defendants stated that they would since Plaintiffs' requested amendments and joinder are improper and without merit. Rather than being legitimate claims for relief, the requeted amendments are more of a means to continue Plaintiffs' campaign of harassment and intimidation against Gorton and, now, his family. Indeed, Plaintiffs go to great lengths in their Motion and proposed amendments to characterize Gorton as corrupt and to cast Lime Wire and Gorton as villains for commonplace acts such as distributing corporate profits to shareholders. In reality, there is nothing nefarious about forming a family limited partnership, selling stock to a partnership, or issuing dividends to shareholders. Defendants object to Plaintiffs' unfair mischaracterizations regarding Gorton's, Lime Wire LLC's, and MJG's actions. Defendants likewise object to the assumption on which all of Plaintiffs' new allegations are premised--that Defendants are liable to Plaintiffs for secondary copyright infringement. Despite their belief that Plaintiffs' amendments are groundless and defective, Defendants recognize that leave to amend complaints should be freely granted. See FED. R. CIV. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). The Supreme Court has clearly expressed a policy in favor of heeding Rule 15(a)'s terms and affording a plaintiff "an opportunity to test his claims on the merits." Foman, 371 U.S. at 182. As expressed in a case on which Plaintiffs rely, "it is rare that such leave [under Rule 15(a)] should be 1123436v1 2 denied." Permatex, Inc. v. Loctite Corp., No. 03 Civ. 943, 2004 WL 1354253 at *1 (S.D.N.Y. Jun. 17, 2004) (quoting Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). Indeed, Lime Wire itself has requested leave to amend its counterclaims-- over Plaintiffs' ironic opposition--in the event the Court finds that Defendants failed in whole or in part to state a claim. Accordingly, since leave to amend is to be freely given, Defendants withdraw their opposition to Plaintiffs' Motion and will address the merits of Plaintiffs' amendments in a motion to dismiss and other means available under the Federal Rules of Civil Procedure. Dated: July 5, 2007 Respectfully Submitted, Of counsel: Lauren E. Handler SDNY (LEH 6908) PORZIO, BROMBERG & NEWMAN, P.C. 100 Southgate Parkwaw P.O. Box 1997 Morristown, NJ 07962-1997 (973) 538-5146 (Facsimile) (973) 889-4326 (Telephone) lehandler@pbn.com ____/s/__________________ Charles S. Baker (CB1365) Joseph D. Cohen (JC3017) Susan K. Hellinger (SH8148) PORTER & HEDGES, LLP 1000 Main Street, 36th Floor Houston, Texas 77002 (713) 226-6000 (Telephone) (713) 228-1331 (Facsimile) cbaker@porterhedges.com jcohen@porterhedges.com shellinger@porterhedges.com Attorneys for Defendants/ Counterplaintiff 1123436v1 3 CERTIFICATE OF SERVICE This is to certify that the foregoing pleading was filed by means of the Court's ECF system. Accordingly, it is assumed that all counsel of record received notice of this filing from the ECF system. Lead counsel, listed below, will also receive a courtesy copy via email. ____________/s/________________ Charles S. Baker TO: Katherine B. Forrest Teena-Ann V. Sankoorikal Cravath, Swaine & Moore, LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7475 (212) 474-1000 (212) 474-3700 (fax) Counsel for Plaintiffs/ Counterclaim Defendants Of Counsel: Kenneth L. Doroshow Karyn A. Temple Recording Industry Association of America 1025 F Street, NW, 10th Floor Washington, DC 20004 (202) 775-0101 (202) 775-7253 (fax) 1123436v1 4