The Authors Guild, Inc. et al v. Hathitrust et al

Filing 31

FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - MOTION to Substitute Party. Old Party: New Party: STIPULATION AND ORDER TO SUBSTIUTE PARTIES. Document filed by Hathitrust.(Petersen, Joseph) Modified on 12/19/2011 (ldi).

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KILPATRICK TOWNSEPO) & STOCKTON LLP Joseph Peteraen (JP 9071) Robert N. Potter (RP 5757) 31 West 52nd Stiieet 14th Floor New York, New Yoric 10019 Telephone: (212) 775-8700 Facsimile: (212)775-8800 Joseph M . Beck (admitted pro hac vice) Alex Fonoroff (admitted pro hac vice) Andrew Pequignot (admitted pro hac vice) Allison Scott Roach (admitted pro hac vice) UOO Peachtree Street Suite 2800 Atlanta, Georgia 30309-4530 Telephone: (404) 815-6500 Facsimile: (404)815-6555 Attomeys for Defendants UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE AUTHORS GUILD, INC., et al. Plaintiffs, 11 CIV 6351 (HB)(JLC) STIPULATION HATHITRUST, era/. Defendants. WHEREAS, on or about October 6, 2011, plaintiffs filed an Amended Complaint (the "Amended Complaint") in the above-captioned action (the "Action") naming, among other defendants, Julia Donovan Darlow, Laurence B. Deitch, Denise Hitch, Olivia P. Maynard, Andrea Fischer Newman, Andrew C. Richner, S. Martin Taylor and Katherine E. White (collectively, the "Michigan Regents"), Richard C. Blum, David Crane, William De La Pena, Russell Gould, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica Lozano, Hadi Makaiwhian, Geoi^e M , Marcus, Alfredo Miieles, Jr., Norman J. Pattiz, Bonnie Reiss, Fred Ruiz, Leslie Tang Schilling, Bruce D. Vamer, Paul Wachter and Charlene Zettel (collectively, the "Califomia Regents"), Jeffrey Bartell, Mark J. Bradley, Judith V. Grain, John Drew, Tony Evers, Michael J. Falbo, Edmund Manydee^, Katherine Pointer, Charles Pruitt, Troy Sherven, Brent Smith, Michael J, Specter, S. Mark Tyle, Jose F, Vasquez and David G. Walsh (collectively, the "Wisconsin Regents"), William R. Cast, Patrick A. Shoulders, Maryellen Kiley Bishop, Bruce Cole. Philip N . Eskew, Jr., Cora J. Griffin, Thomas E. Reilly, Jr., Derica W. Rice and William H. Strong (collectively, the "Indiana Trustees") (all of the foregoing named individu^s, collectively, the "Individual Defendants"); WHEREAS, the defendants in the Action (including the Individual Defendants) served their answer on December 2,2011 (the "Answer"). WHEREAS, the defend^ts warrant and represent that "HathiTrust" is the name of a service of the University of Michigan in which tiie Universities and other institutions participate under a^eements witii U M (the "Hathitrust Service"); and WHEREAS, in lieu of engaging motion practice on tiie issue of whether the Individual Defendants are sufficientiy involved in the alleged activities set forth in the Amended Complaint to support jurisdiction under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L. Ed. 714 (1908) and its progeny, plaintiffs and defendants have agreed to substitute certain otfier individuals in the place and stead of the Individual Defendants in the Action. NOW THEREFORE, I T IS HEREBY STIPULATED AND AGREED, by and between plaintiffs and defendmits, as follows: 1. The Individual Defendants are hereby dismissed from the Action with prejudice. 2 US20M 3047004.1 2. Mary Sm Coleman, President, The University of Michigan, is hereby substituted as a named defendsuat in flie Action in the place and stead of the Michigan Regents. 3. Marie G. Yudof, President, The University of California, is hereby substituted as a named defendant in flie Action in the place and stead of the California Regents, 4. Kevin Reilly, Presidwit, The University of Wisconsin System, is hereby substituted as a named defendant in the Action in the place and stead of the Wisconsin Regents. 5. Michael McRobbie, President, Indiana University, is hereby substituted as a named defendant in the Action in the place and stead of the Indiana Trustees. 6. In view of the substitutions set forth above, the individuals substituted in the place and stead of the Individual Defendants (the "Substituted Defendants") agree not to challenge the Amended Complaint on the grounds that the Substituted Defendants are not sufficiently involved in the alleged activities set forth m the Amended Complaint to support jurisdiction under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L. Ed. 714 (1908) and its progeny. Each Substituted Defendant represents tiiat he or she has the autiiority and control necessary to cause his or her respective university to comply with the terms of an injunction or other court order witii respect to the alleged activities set forth in the Amended Complaint in tiie event tiie Court orders such relief Further, Mary Sue Coleman represents that she has the authority and control necessary to cause the Hathitrust Service to comply with the terms of an injunction or other court order with respect to the alleged activities set forth in the Amended Complaint in the event the Court orders such relief 7. Nothing in tiiis Stipulation shall impair any defenses not expressly addressed herein including, without limitation, all defenses under the 11th Amendment of the United States Constihition (for example, and solely for illusti^ive purposes, the Substituted 3 US2008 3047004.1 Defendants reserve their right of qualified immunity under the discretionary fimctions doctrine and reserve the right to argue that dleged infiingement of copyrights does not constitute a violation of federal law for purposes of Ex Parte Young). 8. The caption in the Amended Complaint is deemed amended to reflect the substitution of the Substituted Defendants in the place and stead of the Individual Defendants. It as agreed among Hxe parties fliat the operative complaint in the Action is the Amended Complaint and that the operative answer is the Amwer and that the parties shall not be obligated to, nor shall they, serve an amended complaint or answer reflecting the dismissal of the Individual Defendants and/or the substitution of the Substitxtted Defendants. Dated: New York, New Yoric December iV,20n FRANKFURT KURNIT KLEIN & KILPATWCK TOWNSENa& Edward H. Rosenthal {ER-8022) Jeremy S. Goldman (JG-7402) 488 Madison Avenue New York, NY 10022 (212) 980-0120 31 West 52"*' Street, 14 Floor New York, New York 10019 (212) 775-8700 Attorneys for Defendants Attomeys for Plaintiffs SO ORDERED: Hon. Harold Baer, Jr. U.S.D.J. 4 US200! 3047004.1