Rupa Marya v. Warner Chappell Music Inc

Filing 277

EX PARTE APPLICATION for Leave to file Declaration of Plaintiff Robert Siegel in Further Support of Reply to Motion for Leave to Amend and File Fifth Amended Complaint filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Declaration Manifold Declaration, # 2 Exhibit Exhibit A, # 3 Proposed Order Granting Plaintiffs' Ex Parte Application) (Manifold, Betsy)

1 FRANCIS M. GREGOREK (144785)
[e-mail]
2 BETSY C. MANIFOLD (182450)
[e-mail]
3 RACHELE R. RICKERT (190634)
[e-mail]
4 MARISA C. LIVESAY (223247)
[e-mail]
5 BRITTANY N. DEJONG (258766)
[e-mail]
6 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
7 750 B Street, Suite 2770
San Diego, CA 92101
8 Telephone: [phone]
9 Facsimile: 619/234-4599
10 Interim Lead Counsel for Plaintiffs and the [Proposed] Class
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

14 GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,
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Plaintiffs,

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v.

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19 WARNER/CHAPPELL MUSIC,
INC., et al.
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Defendants.
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Lead Case No. CV 13-04460-GHK (MRWx)
PLAINTIFFS’ EX PARTE
APPLICATION FOR LEAVETO FILE
PLAINTIFF ROBERT SIEGEL’S
DECLARATION IN FURTHER
SUPPORT OF REPLY TO MOTION
FOR LEAVE TO AMEND AND FILE
FIFTH AMENDED COMPLAINT
Judge:
Room:

Hon. George H. King,
Chief Judge
650

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TO DEFENDANTS AND THEIR COUNSEL OF RECORD:

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Pursuant to Local Rule 7-19, Plaintiffs Good Morning To You Productions

3 Corp., Robert Siegel, Rupa Marya, and Majar Productions, LLC (together,
4 “Plaintiffs”) hereby submit this Ex Parte Application (“Application”) for Leave to
5 File Plaintiff Robert Siegel’s Declaration in Further Support of Reply to Plaintiffs’
6 Motion for Leave to Amend and File Fifth Amended Complaint (“Motion”). This Ex
7 Parte Application is based upon this Application, the Memorandum of Points and
8 Authorities in Support Thereof, and the supporting Declaration of Betsy C. Manifold
9 (“Manifold Decl.”) together with Exhibit A attached thereto.
Pursuant to Local Rule 7-19.1, Plaintiffs notified Defendants’ counsel on

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11 November 19, 2015 at 7:39 a.m. about this ex parte application. Details are provided
12 both below and in the Manifold Declaration.
Ex parte relief is necessary because the parties have fully briefed the Motion

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14 and are now waiting for a ruling from this Court, and Plaintiffs request that Mr.
15 Siegel’s declaration be considered in connection with their reply brief.
16 I.

CONTACT INFORMATION FOR OPPOSING COUNSEL

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Pursuant to Local Rule 7-19, Plaintiffs provide the following contact

18 information for opposing counsel:
19 Kelly M. Klaus

Glen Pomerantz

20 Adam I. Kaplan
21 MUNGER TOLLES & OLSON LLP

Melinda E. LeMoine

22 560 Mission St., 27th Floor
23 San Francisco, CA 94105

355 South Grand Ave., 35th Floor

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MUNGER TOLLES & OLSON LLP

Los Angeles, CA 90071

Telephone: [phone]

Telephone: [phone]

[e-mail]

[e-mail]

[e-mail]

[e-mail]

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On November 18, 2015 at 1:08 p.m., Plaintiffs’ counsel requested Defendants’

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counsel to stipulate to the late filing of Mr. Siegel’s declaration. Manifold Decl., ¶ 4.

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At 10:26 p.m. on that same day, Defendants’ counsel advised that they would not

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stipulate to the late filing and that they took no position as to whether the Court

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should allow the late filing. Id. In response, pursuant to Local Rule 7-19.1, on

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November 19, 2015 at 7:39 a.m., Plaintiffs’ counsel notified Defendants’ counsel

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that Plaintiffs would be filing an ex parte application. Id.

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requested, but, if the Court determines that a hearing would be helpful, Plaintiffs

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could appear at any time convenient to the Court.

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II. MEMORANDUM OF POINTS AND AUTHORITIES

No hearing date is

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Plaintiffs filed a Motion for Leave to Amend and File a Fifth Amended

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Complaint (“Motion”) on October 29, 2015 (Dkt. 258). On November 2, 2015, this

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Court entered an order granting the parties’ joint stipulation expediting the briefing

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schedule on Plaintiffs’ Motion. Under the expedited filing schedule, Defendants1

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opposed the Motion on November 9, 2015 (Dkt. 264), and Plaintiffs filed their Reply

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in support of the Motion on November 12, 2015 (Dkt. 270).

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Plaintiff Robert Siegel was unable to provide Plaintiffs’ counsel with his

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declaration in support of the Reply until after November 12, 2015 because he was

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unavailable.

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requested Defendants’ counsel to stipulate to the filing of Mr. Siegel’s declaration.

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Id., ¶ 4. That same day, Defendants’ counsel advised Plaintiffs’ counsel that he

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would not stipulate to the late filing, thus necessitating this Ex Parte Application. Id.

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Additionally, Defendants’ counsel also advised that he took no position as to whether

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the Court should allow the late filing. Id.

Manifold Decl., ¶ 3.

On November 18, 2015, Plaintiffs’ counsel

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Good cause exists to allow the late filing because Plaintiff Robert Siegel was

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unavailable prior to the filing of Plaintiffs’ Reply. Id., ¶ 3; See Connor v. California,

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“Defendants” refers to Defendants Warner/Chappell Music, Inc. and SummyBirchard, Inc.

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1:10-cv-01967-AWI-BAM, 2012 U.S. Dist. LEXIS 166596, at *3 (E.D. Cal. Nov.

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20, 2012) (good cause existed to consider declaration submitted for first time in reply

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to motion for summary judgment because declarant was unavailable at time motion

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was due). Just as the other Plaintiffs declared, Mr. Siegel did not become aware of

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copyright dispute until the filing of this lawsuit and prior to that time, he had no

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reason to suspect that Defendants did not own a copyright to Happy Birthday to You.

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Siegel Declaration, ¶¶ 3, 4 (attached as Ex. A to the Manifold Declaration). This

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declaration provides further support to Plaintiffs’ argument that the delayed

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discovery rule should apply and therefore the amendment is not futile.

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III. CONCLUSION

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Based on the foregoing, Plaintiffs respectfully request that this Court enter an

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order granting Plaintiffs’ Ex Parte Application for Leave to File Robert Siegel’s

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Declaration.

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Respectfully submitted,
Dated: November 19, 2015

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

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By:

/s/ Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]
BRITTANY N. DEJONG
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]

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_____

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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

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Interim Lead Counsel for Plaintiffs

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RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
[e-mail]
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]
HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]
Facsimile 626/796-0107
Facsimile: 212/797-3172
DONAHUE GALLAGHER WOODS
LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail] th
1999 Harrison Street, 25 Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

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GLANCY PRONGAY &
MURRAY, LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160
Attorneys for Plaintiffs

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WARNER/CHAPPELL: 22442

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