Laura Larson v. Warner Bros Entertainment, Inc, et al
Filed (ECF) Appellees DC Comics and Warner Bros. Entertainment, Inc. in 11-55863, Appellants DC Comics and Warner Bros. Entertainment, Inc. in 11-56034 reply to response (). Date of service: 04/12/2012.  [11-55863, 11-56034] (DP)
Appeal Nos. 11-55863, 11-56034
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURA SIEGEL LARSON,
Plaintiff, Counterclaim-Defendant, Appellant, and Cross-Appellee,
WARNER BROS. ENTERTAINMENT INC. AND DC COMICS,
Defendants, Counterclaimants, Appellees, and Cross-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
THE HONORABLE OTIS D. WRIGHT II, JUDGE
CASE NO. CV-04-8400 ODW (RZX)
REPLY IN SUPPORT OF MOTION BY CROSS-APPELLANTS AND
APPELLEES WARNER BROS. ENTERTAINMENT INC. AND DC COMICS
FOR ASSIGNMENT TO A SPECIFIC PANEL
JONATHAN D. HACKER
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
Telephone: (202) 383-5300
PATRICK T. PERKINS
PERKINS LAW OFFICE, P.C.
1711 Route 9D
Cold Spring, New York 10516
Telephone: (845) 265-2820
DANIEL M. PETROCELLI
MATTHEW T. KLINE
CASSANDRA L. SETO
O’MELVENY & MYERS LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, California 90067
Telephone: (310) 553-6700
Facsimile: (310) 246-6779
Attorneys for Warner Bros. Entertainment Inc. and DC Comics
DC’s motion for assignment should be granted. In her opposition, Larson
concedes, as she must, that this Court has “ample discretion” to assign related
cases to the same panel. Opp. at 3. Nor does she dispute or can she dispute:
• that the Superman cases underlying the appeals before this Court1 were
deemed “related” and transferred to the same district judge below;
• that, pursuant to Circuit Rule 28-2.6, Larson and her co-defendants
themselves identified in their briefs each of the cases as “related”; or
• that these cases involve overlapping parties, issues, and evidence.
It would plainly serve the interest of judicial efficiency for one panel to hear
these interrelated appeals. GOELZ ET AL., CALIFORNIA PRACTICE GUIDE: FEDERAL
NINTH CIRCUIT CIVIL APPELLATE PRACTICE § 9:59 (Rutter 2011) (“Cases identified
by the parties as ‘related’ in their briefs are generally calendared before the same
panel.”) (emphasis added); id. § 9:53 (assignment appropriate where panel has
considered a case “involving some of the same parties and issues”). And because
one of the cases has already been extensively briefed, argued, and taken under
submission by one panel—Appeal No. 11-71844 (Kozinski, C.J.; O’Scannlain, J.;
Smith, J.)—it makes sense for the same panel to consider the remainder of them.
Larson v. Warner Bros. Entm’t Inc. & DC Comics, Case No. CV-04-8400
ODW, gave rise to the instant appeal and cross-appeal (Appeal Nos. 11-55863, 1156034); and DC Comics v. Pacific Pictures, Case No. CV-10-3633 ODW, gave
rise to defendants’ writ petition (Appeal No. 11-71844) and interlocutory appeal
for their failed SLAPP motion (Appeal No. 11-56934).
Larson’s claims that DC’s Pacific Pictures case is “retaliatory” or being
pursued improperly, Opp. at 1, 6, were not only rejected by the district court
below, but its rulings so holding underscore the relatedness of the actions, as they
are the subject of the writ petition that this Court just heard and defendants’
SLAPP appeal, which will be briefed in the coming weeks. Larson herself
acknowledges that many of DC’s claims in the Pacific Pictures case arise from key
events at issue in the Larson appeal, Opp. at 6—including DC’s allegation that
Marc Toberoff, the self-styled entertainment executive, induced Larson to
repudiate a binding settlement agreement she reached with DC that bars her
copyright claims in the Larson case. Compare Appeal Nos. 11-55863, 11-56034,
Docket No. 31-1 at 15-19, 25-37 (DC’s merits brief in Larson cross-appeal), with
Appeal No. 10-56594, Docket No. 7-3 ¶¶ 7-8, 66-85, 180-86 & n.6 (DC’s
operative complaint in Pacific Pictures case), Appeal No. 11-71844, Docket No.
16 at 3-9 (district court’s ruling on SLAPP motion). There is no better evidence of
this clear overlap between the Larson and Pacific Pictures appeals than Larson’s
and her co-defendants’ briefing on the Pacific Pictures writ, which devotes 10
pages to discussing the Larson case and her SLAPP motion.
Larson finally asserts that DC should have requested assignment to the Ninth
Circuit panel that denied the Pacific Pictures defendants’ premature challenges to
the district court’s SLAPP rulings—challenges they brought even before the
district court ruled on the motion. Such a request would not have been well-taken,
as those proceedings were summarily dismissed without any merits briefing, any
oral argument, or any substantive opinions being issued. Indeed, the writ petition
was denied in a three-sentence order three weeks after it was filed. Appeal No. 1073851, Docket No. 13. And the appeal was dismissed four days later for lack of
jurisdiction in a curt minute order, and after the Clerk of Court issued an order to
show cause why the case should not be dismissed for lack of jurisdiction. Appeal
No. 10-56594, Docket No. 15.2 Still two other Ninth Circuit panels have been
forced to weigh in on this case in response to the Pacific Pictures defendants’
latest writ petition, Appeal No. 11-71844, Docket Nos. 2, 8, but one and only one
panel—the one that heard oral argument on that writ in February 2012—has ever
had to spend considerable time addressing these Superman cases. It is to that panel
that DC directed its motion for assignment, and that motion should be granted.
Dated: April 12, 2012
O’MELVENY & MYERS LLP
By: /s/ Daniel M. Petrocelli
Daniel M. Petrocelli
Larson’s co-defendants filed yet another interlocutory appeal, which they
voluntarily dismissed. See Appeal No. 10-56980, Docket Nos. 6, 13.
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