Degginger v. McGraw-Hill Global Education Holdings LLC

Filing 99

ORDER the Court ADOPTS the Report and Recommendation (Doc. 96 ) in its entirety. The Objections (Doc. 97 ) raised by the Defendants are OVERRULED. IT IS FURTHER ORDERED that Defendants' Motion for Partial Summary Judgment (Doc. 65 ) is DENIED. This matter is REFERRED BACK to the Magistrate Judge to continue pretrial management through discovery and dispositive motions. Signed by Senior Judge David C Bury on 1/5/2016. (See attached Order for complete information)(DLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Phil Degginger,

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Plaintiff,
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v.
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McGraw-Hill Global Education Holdings, )
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et al.,
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Defendants.
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______________________________________

CV-14-2429-TUC-DCB

ORDER

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This matter was referred to the United States Magistrate Judge

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pursuant to 28 U.S.C. §636(b)(1)(B) and the local rules of practice of

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this Court for hearing and a Report and Recommendation (R&R) on the

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Defendants’ Motion for Partial Summary Judgment. Before the Court is the

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Magistrate Judge’s Report and Recommendation on the Defendants’ Motion

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for Partial Summary Judgment. The Magistrate Judge recommends, after

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hearing oral argument, to the Court that the Motion for Partial Summary

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Judgment should be denied.

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Recommendation and Plaintiff responded to these Objections.

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The Defendants filed Objections to this

STANDARD OF REVIEW

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When objection is made to the findings and recommendation of a

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magistrate judge, the district court must conduct a de novo review.

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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DEFENDANTS’ OBJECTIONS

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Defendants object, as follows: (1) the Magistrate Judge erred in

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holding that Defendants did not adequately differentiate the in-suit

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infringements for which it claims Plaintiff had actual knowledge; (2) the

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Magistrate Judge erred in finding there is a dispute of fact as to

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whether Plaintiff had constructive knowledge of all of Defendants’ other

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infringements; (3) Defendants dispute the Magistrate Judge’s finding that

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Defendants

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Defendants’

failed

to

show

infringement

Plaintiff’s
of

attorneys

Plaintiff’s

had

knowledge

photographs,

of

because

of

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information obtained in representing a different client in April 2011;

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and, (4) the Magistrate Judge incorrectly found a dispute of fact as to

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whether Plaintiff conducted a sufficient investigation of Defendants

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based on what he knew of Defendants’ infringements. Defendants argue that

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no investigation was conducted.

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DISCUSSION

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After conducting a de novo review of the record, the Court finds

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that none of the lodged Objections merit a conclusion other than that the

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Report and Recommendation should be adopted completely.

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not entitled to summary judgment on the basis of actual knowledge and

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resolution of the constructive knowledge issue is one that poses a

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genuine issue of material fact, as well as credibility assessments.

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jury will need to resolve these questions.

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to investigate issue.

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of fact and not resolvable by dispostive motion, based on the

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before this Court.

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and legal conclusions contained in the Report and Recommendation.

A

This also applies to the duty

Notice and knowledge are all material questions
record

The record completely supports the factual findings

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Defendants are

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CONCLUSION

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Accordingly, after conducting a de novo review of the record,

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IT IS ORDERED that the Court ADOPTS the Report and Recommendation

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(Doc. 96) in its entirety.

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Defendants are OVERRULED.

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The Objections (Doc. 97) raised by the

IT IS FURTHER ORDERED that Defendants’ Motion for Partial Summary

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Judgment (Doc. 65) is DENIED.

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Magistrate Judge to continue pretrial management through discovery and

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dispositive motions.

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This matter is REFERRED BACK to the

DATED this 5th day of January, 2016.

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