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

Filing 33

STIPULATION: NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between plaintiffs and defendants as follows:The Individual Defendants are hereby dismissed from the Action with prejudice. 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 the parties that the operative complaint in the Action is the AmendedComplaint and that the operative answer is the Answer 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 Substituted Defendants. SO ORDERED. (Signed by Judge Harold Baer on 12/21/2011) (ama)

KILPATRICK TOWNSEND 4 STOCKTON LLP Jo. PeterSen (JP 9071) Robert N. p~ (R.P 5757) 31 West S2nd street 14th Floor New York, New YOIt 10019 Telephone: (212) 775-8700 Facsimile: (212) 775·8800 USDSSDNY DOCUMENT ELECTRONICALLY FILED DOC#: ~~--rml-7'i4-l~~ DATE FILED: Joseph M. Beck (admitted pro hoc vice) Alex Fonoroff(adarlttedpro hIM; vice) Andrew Pequignot (admitted pro hIM; vice) Allison Scon R.olJeh (admitted pro hoc vice) 1J00 Peachtree Street Suite 2800 Atlanta. Georgia 30309....530 Telephone: (404) 815-6500 Facsimile; (404) 81S-6SSS Attorneys for Defondont3 UNITED STATES DISTRICT COURT SOUTIIERN DISTRICT OF NEW VORK TIfB AUTHORS GUILD, INC., el al. Plaintiffs, v. 11 CIV 6351 (HB)(JLC) HATInTRUST. et aI. STIPULATION Defendants. WHEREAS, on or about October 6,2011, plaintiffs filed an Amended Complaint (the "Amended Complaintj in the above-captioned action (the "Actionj 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 (coJlectively, the "Michigan Regentsj. Richard C. Blum, David Crane. William De La Pena, Russell Oould. Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica Lozano" Hadi Makarechian, George M. Marcus. Alfredo Mireles, Jr., Norman 1. Patti2:, BoDDie Roiss, Fmi Ruiz, Leslie Taug Sohilling. Bruoe D. Varner, Paul Wachter and Charlene Zettel (collectively, the"Califomia Regents"). Jeffrey Bartell, Mark J. Bradley, Judith V. Cmin, John Drew. Tony Evers. Michael 1. Falbo. Edmund ManydeedS. Katherine ~ointer, Charles Pruitt, Troy Sbcrven, Brent Smith, Michael J. Specter, S. Mark Tylc. Jose F. Vasquez and David O. Walsh (collectively. the "Wisconsin Reaents"). William R. Cast. Patrick A. Shoulders. Maryellen Kiley Bishop, Bnwe Cole, Philip N. Eskew, Jr•• Cora J. Griffin, Thomas E. Reilly, Jr., Derica W. Rice and William H. Strong (collectively, the "Indiana Trustees") (all ofthe foregoing named individuals, collectively. the "IUdividual Defendants"); WHEREAS. the defendants in the Action (including the Individual Defendants) served their answer on December 2, 2011 (the "Answer"). WHEREAS, the defendants warrant and represent that "HatbiTrust" is the name of a service of the University of MiChigan in which the Universities and other institutions participate lmder agreements with UM (the "Hathitrust Service"); and WHEREAS, in lieu of engaging motion practice on the issue of whether the Individual Defendants are sufficiently involved in the alleged activities set forth in the Amended ~mplaint 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 other individuals in the place and stead ofthe Individual Defendants in the Action. NOW THEREFORE. IT IS HEREBY STIPULATED AND AGREED, by and between plaintiffs and defendants. as follows: 1. The Individual Defendants are hereby dismissed from the Action with prejudice. 2 ~:I04'OOU 2. Mary Sue Coleman, President, The University of Michigan, is herdly substituted as a named defendant in the Action in the place and stead ofthe Micbigau Regents. 3. Made O. Yudof, President. The University of California, is hereby substituted as anamed defeDdant in the Action in the place and stead of the California Regents. 4. Kevin Reilly, President, 'The University of Wisconsin System, is hereby substituted as a named defendant in the Action in the place and stead ofthe Wisconsin Regeots. S. Michael McRobbie, President. Indiana University. is hereby substituted as a named defendant in the Action in the place and stead oftbe Indiana Trustees. 6. In view of the substitutions set forth above, tbe 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 in the Amended Complaint to support jurisdiction under Ex Parte Young, 209 U.S. 123. 28 8.6. 441, 52 L. Ed. 714 (1908) and its progeny. Eacl1 Substituted Defendant represents that he or she bas the authority and control necessary to cause his or her respective university 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. 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 aUeged activities set forth in the Amended Complaint in the event the Court orders such relief. 7. Nothing in this StipUlation shall impair any defenses not expressly addressed herein inc:luding. without limitation. all defenses under the 11 th Amendment of the United States Constitution (for example, and solely for illustrative purposes, the Substituted 3 Defendants reserve their right of qualified immunity under the discretiODBl')' fi.mctions doctrine and reserve the right to argue that alleged infrlnscment of copyrights does not constitute a violation offederal law for purposes ofEx Parte Young). 8. The caption in the Amended Complaint is deemed amended to reflect the substitution ofthe Substituted Defendants in the place and stead of the Individual Defendal1ts. It lIS agreed among the parties that the operative complaint in the Action is the Amended Complaint and that the operative answer is the Answer and that the parties shaU 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 Substituted Defendants. Dated: New Yark, })few York December .f!, 2011 FRANKFURT KVRNIT KLEIN &; SELZ,P.C. By: KILPATRICK T['!nMENlIl4 p STOCKTO ~'J rl... \-' ~ ~;-...~ By: __~~~~~~==_____ oSeph Petersen (JP-9071) . lit Edward H. Rosenthal (ER-8022) Jeremy S. Goldman (J0-7402) 488 Madison Avenue New York, NY 10022 (212) 980-0120 31 West 52" Street,]4 Floor New York, New York 10019 (212) 775-8700 Attorneysfor Defendants 4