Jackson Browne v. John McCain et al

Filing 13

MEMORANDUM in Opposition to Joint EX PARTE APPLICATION to Continue Time to Respond to Complaint from October 27, 2008 to November 17, 2008 Re: Complaint - (Discovery) 1 Memorandum of Points and Authorities 11 filed by Plaintiff Jackson Browne. (Steinsapir, Jonathan)

Jackson Browne v. John McCain et al

Doc. 13

1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP LAWRENCE Y. ISER (SBN 094611) 2 [e-mail] JONATHAN STEINSAPIR (SBN 226281) 3 [e-mail] GREGORY S. GABRIEL (SBN 239902) 4 [e-mail] 808 Wilshire Boulevard, 3rd Floor 5 Santa Monica, California 90401 Telephone: [phone] Facsimile: 310.566.9850 7 Attorneys for Jackson Browne 8 9
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 08-05334 RGK (Ex) PLAINTIFFS' OPPOSITION TO DEFENDANTS' JOINT EX PARTE APPLICATION TO EXTEND TIME FOR DEFENDANTS TO RESPOND TO COMPLAINT; DECLARATION OF LAWRENCE Y. ISER IN SUPPORT THEREOF Hon. R. Gary Klausner Date Filed: August 14, 2008

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11 12 JACKSON BROWNE, an individual 13 14 vs. Plaintiff,

15 JOHN MCCAIN, an individual; THE REPUBLICAN NATIONAL 16 COMMITTEE, a non-profit political organization; THE OHIO 17 REPUBLICAN PARTY; a non-profit political organization 18 Defendants. 19 20 21 22 23 24 25 26 27 28
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1 I. 2

INTRODUCTION Defendants the Ohio Republican Party ("ORP"), Republican National

3 Committee ("RNC") and Senator John McCain (collectively "Defendants") 4 misappropriated singer/songwriter Jackson Browne's ("Browne") most famous and 5 recognizable song, Running on Empty, for use in a political advertisement 6 promoting Senator McCain for President (the "Advertisement") without Browne's 7 authorization or consent. On August 14, 2008, Browne filed a complaint asserting 8 causes of action against Defendants for copyright infringement, creating a false 9 endorsement in violation of the Lanham Act, and infringement of Browne's right of
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10 publicity (the "Complaint"). Defendants intend to challenge the Complaint on the 11 grounds that that the First Amendment somehow protects their wholesale
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12 misappropriation of Browne's intellectual property, or alternatively that their 13 unauthorized use constitutes a "fair use." The ORP also intends to challenge 14 personal jurisdiction and venue. Browne has already twice extended the 15 professional courtesy of allowing Defendants more time to respond to the 16 Complaint, but declines to provide a third extension. Defendants contend that they 17 need a third extension because they are so consumed with the upcoming Presidential 18 election that they cannot engage in the fact gathering "necessary" to challenge the 19 Complaint. However, given that the motions Defendants intend to file in response 20 to the Complaint are based exclusively on legal arguments ­ with the narrow 21 exception of the ORP's jurisdictional motion ­ Defendants' basis for contending 22 that they need more time rings hollow. More than two months after the filing of the 23 Complaint, it is time for this action to proceed and for Defendants to respond to the 24 Complaint. 25 II. 26 ARGUMENT Browne filed the Complaint on August 14, 2008 and served each of the

27 Defendants at different times in early September 2008. Since then, Browne has 28 extended every professional courtesy possible to Defendants. When Defendants
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1 requested a 30 day extension to respond to the Complaint pursuant to Central 2 District Local Rule 8-3, Browne agreed. Pursuant to stipulations, the RNC's 3 response was to be filed by October 13, 2008, while Senator McCain's response was 4 to be filed by October 24, 2008. Subsequently, during a conference call among all 5 parties' attorneys, Browne extended Defendants a second professional courtesy by 6 agreeing to permit all Defendants to coordinate their efforts and respond 7 simultaneously on October 27, 2008. However, after more than two months, it is 8 time for this action to proceed. Accordingly, Browne declined Defendants' third 9 request for additional time to respond until November 17, 2008, because the request
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10 seeks to unreasonably delay this action. 11
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Defendants' contention that Defendants need more time to respond to the

12 Complaint because their involvement in the upcoming Presidential election 13 precludes them from engaging in "extensive" fact and declaration gathering may be 14 appealing on its face, but a closer look reveals that it is a red-herring. During a 15 telephone call on October 6, 2008, Defendants' attorneys informed Browne's 16 attorneys that Defendants intend to file various motions challenging the sufficiency 17 of the allegations in the Complaint. Declaration of Lawrence Y. Iser ("Iser Decl."), 18 ¶ 2. Defendants intend to file a motion based on Federal Rule of Civil Procedure 19 12(b)(6) challenging the Complaint on the grounds that it fails to state a claim. Id. 20 Defendants also intend to challenge Browne's right of publicity claim on the 21 grounds that it should be stricken pursuant to California's Anti-SLAPP statute, 22 California Code of Civil Procedure § 425.16. Id. Defendants' will apparently argue 23 that the Advertisement was political speech and given the First Amendment 24 protections associated with political speech, Browne will not be able to establish a 25 reasonable probability of success on the merits of his claim in opposition to the 26 Anti-SLAPP motion. Finally, the ORP intends to file a motion challenging personal 27 jurisdiction and venue. Id. 28 Defendants' intended motions are based purely on legal arguments, with the
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1 limited exception of the ORP's jurisdictional motion. None of these motions require 2 "extensive fact gathering" or the submission of any evidence by way of declaration. 3 Indeed, with respect to the Rule 12(b)(6) motion, the submission of supporting 4 evidence is inappropriate. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 5 1141 Fn. 5 (9th Cir. 2003) ("a court must generally refrain from considering extrinsic 6 evidence in deciding a 12(b)(6) motion . . ."). Similarly, challenging Browne's right 7 of publicity claim based on the extraordinary argument that the First Amendment 8 allows Defendants to make unauthorized use of Browne's identity with impunity 9 requires the submission of no evidence, simply legal argument. Additionally, the
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10 ORP suggested in its letter to Browne's attorneys that it has no contacts with 11 California and that the Advertisement was directed solely to the State of Ohio and
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12 Ohio voters (despite the fact that the ORP placed the advertisement on 13 YouTube.com, thereby intentionally exposing it to an international audience 14 including California). Iser Decl., Ex. A. The ORP needs little more than a single 15 declaration, which will likely be drafted by its lawyers, to support its argument. 16 These are not fact-intensive summary judgment-type motions, as Defendants 17 attempt to lead the Court to believe. 18 Finally, Defendants fail to submit any competent evidence to substantiate that 19 they, and especially their counsel, are too consumed with the upcoming Presidential 20 election to devote any attention to this lawsuit. Rather than offer even a single 21 declaration, Defendants rely instead solely on the argument of their lawyers. 22 Defendants to not even attempt to explain to the Court from whom they will need 23 declarations or why, and only vaguely refer to the necessity of obtaining 24 declarations from "representatives of Defendants" and "other witnesses." Based on 25 the foregoing, Defendants' motion fails to establish good cause for what is a third 26 extension, much less that they will suffer any prejudice by having to respond to the 27 Complaint by October 27, 2008. 28
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DECLARATION OF LAWRENCE Y. ISER