Bryan Pringle v. William Adams Jr et al

Filing 129

DECLARATION of Dean A. Dickie re MOTION to Dismiss Rister Editions Based on Improper Service; 121 , Declaration (Motion related) 125 , Memorandum in Support of Motion 122 , Order on Motion to Dismiss Party, 126 , Reply (Motion related) 124 , Objection/Opposition (Motion related) 123 , Declaration (non-motion), Declaration (non-motion) 128 Objecting to Barry Slotnick's Declaration in Support of Defendant's Application For Fees filed by Plaintiff Bryan Pringle. (Hampton, George)

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Dean A. Dickie (appearing Pro Hac Vice)
[e-mail]
Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
[e-mail]
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
225 West Washington Street, Suite 2600
Chicago, IL 60606
Telephone: [phone]
Facsimile: 312.460.4288
Ira Gould (appearing Pro Hac Vice)
[e-mail]
Ryan L. Greely (appearing Pro Hac Vice)
[e-mail]
GOULD LAW GROUP
120 North LaSalle Street, Suite 2750
Chicago, IL 60602
Telephone: [phone]
Facsimile: 312.726.1328
George L. Hampton IV (State Bar No. 144433)
[e-mail]
Colin C. Holley (State Bar No. 191999)
[e-mail]
HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
Corona del Mar, California 92625
Telephone: [phone]
Facsimile: 949.718.4580
Attorneys for Plaintiff
BRYAN PRINGLE

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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)
)
)
Plaintiff,
)
)
v.
)
)
WILLIAM ADAMS, JR.; STACY
)
FERGUSON; ALLAN PINEDA; and
)
JAIME GOMEZ, all individually and
collectively as the music group The Black )
)
Eyed Peas, et al.,
)
)
Defendants.
)
BRYAN PRINGLE, an individual,

Case No. SACV 10-1656 JST(RZx)
DECLARATION OF
DEAN A. DICKIE IN
OBJECTION TO BARRY I.
SLOTNICK’S DECLARATION
IN SUPPORT OF DEFENDANT’S
APPLICATION FOR FEES
Complaint Filed: October 28, 2010
Trial Date:
January 24, 2012

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DECLARATION OF DEAN A. DICKIE

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Dean A. Dickie, having personal knowledge of the facts contained within this
declaration, states that if called as a witness, he could testify regarding the
following:
1.

I am a partner at the law firm of Miller, Canfield, Paddock and Stone,

P.L.C., and am lead counsel for Plaintiff, Bryan Pringle (“Plaintiff” or “Pringle”) in
the above-captioned action. I am a member in good standing of the State Bar of
Illinois.
2.

I submit this declaration in objection to the declaration of Barry I.

Slotnick filed on April 22, 2011 pursuant to Honorable Josephine Staton Tucker’s
April 12, 2011 Order directing Rister Editions (“Rister”) to file a declaration as to
the expenses, costs and attorneys’ fees incurred in filing its motion to dismiss for
improper service of Plaintiff’s Second Amended Complaint.
3.

The Court’s Order of April 12, 2011 ordered as follows: “Thus,

Plaintiff’s counsel shall pay to Rister sanctions in the amount of the reasonable
expenses, costs, and attorneys’ fees Rister incurred in filing this motion. The Court
orders Rister to file promptly a detailed declaration as to those costs and expenses,
so that the Court may determine the sanctions amount to be paid by Plaintiff’s
counsel to Rister.” [Doc. #126] (emphasis added).
4.

I have reviewed Mr. Slotnick’s declaration, the “Time Detail” report

attached as Exhibit B to Mr. Slotnick’s declaration as well as the involvement of
the five attorneys for whom expenses and costs are sought. I have also considered
my forty-two years of experience as a federal court trial lawyer and my knowledge
of the facts of this case. Based on that review and experience, the entries included
in Exhibit B do not reflect time reasonably and necessarily incurred in filing the
second Motion to Dismiss based on the same grounds as presented in the initial
Motion to Dismiss for improper service of process.

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-2DECLARATION OF DEAN A. DICKIE

Background

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5.

On December 13, 2010, Rister filed its first motion to dismiss based on

improper service. [Doc. #53]
6.

On January 27, 2011, the Court ordered Plaintiff simply to “promptly

serve” the summons and complaint on Rister. [Doc. #95]
7.

Plaintiff’s counsel proceeded to investigate the various options in

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serving both Rister and Frederic Riesterer (“Mr. Riesterer” or “Riesterer”) properly,

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including examination of the use of the Hague Convention’s process and procedure,

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which was determined to be both overly costly for Plaintiff and inefficient for

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purposes of working within the Court’s timeframe for service.
8.

On February 27, 2011, Bryan Cave, counsel for co-defendants, served

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Rule 26 disclosures identifying Mr. Riesterer as a witness and providing his address

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as the law firm of Loeb & Loeb, 345 Park Avenue, New York, NY 10154.

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9.

Concurrently, pursuant to Plaintiff counsel’s interpretation of the

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Court’s January 27 order, Plaintiff’s entire litigation team in good faith determined

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that it was necessary to remedy the proof of service issue raised by the Court for

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purposes of properly serving Rister via its U.S. implied agent Shapiro Bernstein

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Co., Ltd. Plaintiff’s counsel proceeded to serve Rister via Shapiro’s office with an

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amended proof of service designating Shapiro as Rister’s agent.

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10.

With respect to service of Mr. Riesterer himself, based on Defendants’

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representation as set forth in the Bryan Cave Rule 26 disclosure, Plaintiff’s counsel

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attempted to serve Mr. Riesterer at Loeb & Loeb via a process server who was

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informed by the managing partner for Loeb & Loeb that Loeb & Loeb was not

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representing Mr. Riesterer despite the representations made in Defendants’ Rule 26

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disclosures. See copy of Rule 26 Disclosures attached hereto as Exhibit A.

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11.

Plaintiff’s counsel then sent a letter to Kara Cenar at Bryan Cave, and

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Barry I. Slotnick at Loeb & Loeb (now counsel for Riesterer) relaying these facts

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and requesting that Loeb & Loeb provide Mr. Riesterer’s address in France. See
-3DECLARATION OF DEAN A. DICKIE

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copy of correspondence between Dean A. Dickie and Kara Cenar and Barry

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Slotnick attached hereto as Exhibit B.

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12.

On March 16, 2011, Loeb & Loeb again stated that they did not

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represent Mr. Riesterer and refused to provide Mr. Riesterer’s contact information.

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See copy of correspondence between Dean A. Dickie and Barry Slotnick attached

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hereto as Exhibit C.

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13.

On March 18, 2011, Plaintiff’s counsel sent another letter to

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Mr. Slotnick raising concerns regarding Loeb & Loeb’s attempts to frustrate

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Plaintiff’s attempts at service of Rister via Shapiro Bernstein and Mr. Riesterer,

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specifically noting concerns regarding Loeb & Loeb’s refusal to provide

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Mr. Riesterer’s contact information. See Exhibit D.

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14.

On March 18, 2011, Mr. Slotnick responded to Plaintiff’s

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correspondence disavowing any agency relationship between Shapiro and Rister

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and demanding that Plaintiff withdraw service on Rister Editions and/or Square

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Rivoli via Shapiro. See copy of correspondence between Dean A. Dickie and Barry

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Slotnick attached hereto as Exhibit E.

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On March 21, 2011, Mr. Slotnick finally reversed his position and

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conceded that Loeb & Loeb was representing Mr. Riesterer and would be willing to

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provide his contact information. See copy of correspondence between Dean A.

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Dickie and Barry Slotnick attached hereto as Exhibit F.

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second amended complaint. [Doc. #127]
Standard for Reasonable Attorneys’ Fees

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On April 15, 2011, Loeb & Loeb filed Mr. Risterer’s answer to the

17.

Upon deciding to award attorneys' fees, district courts ordinarily

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determine a reasonable award by starting with the lodestar amount. Glass v. Sue,

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No. No. CV 09-8570, 2011 WL 561028 (C.D. Cal. Feb. 8, 2011) (citing City of

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Burlington v. Dague, 505 U.S. 557, 559 (1992)); Morales v. City of San Rafael, 96

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-4DECLARATION OF DEAN A. DICKIE

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F.3d 359, 363 (9th Cir. 1996). The lodestar amount is calculated by multiplying the

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number of hours reasonably expended on litigation by a reasonable hourly fee. Id.

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Courts may adjust the lodestar upward or downward based on facts not subsumed

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in the initial lodestar calculation. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d

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1041, 1045 (9th Cir. 2000). The amount of reasonable attorneys' fees is “committed

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to the sound discretion of a trial judge.” Glass, 2011 WL 561028, at *2 (citation

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omitted).

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In determining a reasonable hourly rate, courts generally consider

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several factors, including: (1) the experience, skill, and reputation of the applicant;

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(2) the prevailing rate in the community for comparable attorneys; and (3) the

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novelty or difficulty of the issues presented. See Welch v. Metro. Life Ins. Co., 480

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F.3d 942, 946 (9th Cir. 2007); Chalmers v. City of L.A ., 796 F.2d 1205, 1210-11

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(9th Cir. 1986).

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Courts typically reduce the hours claimed when the documentation is

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inadequate or the time has not been reasonably expended Welch, 480 F.3d at 948

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(citing Sorenson v. Mink, 239 F.3d 1140, 1146 (9th Cir. 2001)).

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Additionally, Courts may reduce a fee award if the prevailing party

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unreasonably protracts the litigation, resulting in unnecessary fees or engages in

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conduct that unduly multiplies the proceedings Hensley v. Eckerhart, 461 U.S. 424,

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456 (1983); Jankey v. Poop Deck, 537 F.3d 1122, 1131-34 (9th Cir. 2008).

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Objection to Rister’s Unreasonable Attorneys’ Fees and Costs

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A.

The Attorneys’ Fees Expended for a Refiled Motion to Dismiss
Are Unreasonable and Excessive

21.

The second Motion to Dismiss for lack of proper service is little more

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than a rehash of the same arguments and overlapping caselaw citations raised in the

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first motion to dismiss filed by Rister in December of 2010. [See Doc. #53 and Doc.

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-5DECLARATION OF DEAN A. DICKIE

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#122]. As such, the time Loeb & Loeb expended to essentially refile a motion to

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dismiss on the same grounds as an earlier motion is excessive and unreasonable.

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Based on the written exchange with Loeb & Loeb and the Internet

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statement that Shapiro, Bernstein & Co. (“Shapiro”) was the representative for

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Square Rivoli and Rister Editions (“Shapiro Bernstein Representing Square

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Rivoli and Rister Editions” posted as an article on Shapiro’s own website,

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advertising its relationship with Rister to the world), Plaintiff’s counsel concluded

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that at the very least, Shapiro was the implied agent for service on Rister pursuant

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to Federal Rule of Civil Procedure 4(e)(2).

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[A true and correct copy of the

Newspost is attached as Exhibit A to Doc. #123-1]
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The expenditure of 71.3 hours, totaling $36,091.50, presented by Loeb

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& Loeb as billable time spent in filing the motion to dismiss is inaccurate, not

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reasonable and completely unwarranted given the lack of novelty or difficulty of

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the issue presented. Indeed, if Plaintiff counsel’s conduct was “reckless” little if any

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research was needed and the service issue would have been facily dispatched.

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However, reliance on an internet statement made by Shapiro Bernstein

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to the public is neither reckless nor inappropriate under FRCP 4(e)(2).This is

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particularly so given the fact that in there is an overlap of cases shown in the

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motions despite the inclusion of extensive billable entries for legal research.

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25.

The expenses sought go beyond that which the Court directed be

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addressed.

Upon careful review of the billable entries included in the “Time

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Detail” submitted, it quickly becomes clear that the billable entries submitted by

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Loeb & Loeb do not solely relate to the expenses incurred in the filing of the

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motion to dismiss as directed by the Court’s order. Instead, the entries appear to

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encompass all time apparently spent by Loeb & Loeb on behalf of Rister in this

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matter, expenses not those incurred directly in filing the motion.

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-6DECLARATION OF DEAN A. DICKIE

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26.

The second motion to dismiss and memorandum filed by Loeb & Loeb

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totals eight (8) pages, the substance of which greatly mirrors the argument

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contained within the first motion to dismiss filed in December of 2010. [See Doc.

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#53 and #122 for comparison].

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27.

The “Time Detail” provided shows that Loeb & Loeb seeks

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compensation for 29.5 hours related to the filing of an 8-page second motion to

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dismiss and memorandum, totaling $15,725.00. The motion and reply total 16

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pages. [Doc. #128-2, at 1 and 2] Nothing in the Declaration of Mr. Slotnick sets

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forth why almost 30 hours of attorney time was required to refile a previous

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motion. Plaintiff’s counsel should not be expected to pay for Rister’s re-creation of

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the proverbial “wheel.”

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Thus, the expenditure of 29.5 hours on an eight (8) page motion to

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dismiss and memorandum in support of the motion cannot be reasonable or

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justified. Moreover, the 30 hours of time to draft an 8-page motion would seem to

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be evidence of either inexperience or excessive billing.

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29.

Likewise, the Reply filed by Loeb & Loeb in support of the motion to

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dismiss encompasses only eight (8) pages. Yet Loeb & Loeb billed 26.7 hours to

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same, totaling $11,644.40.

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30.

There is no explanation of how or why 26.7 hours of lawyer time were

required to draft an eight (8) page Reply brief.
31.

56.2 hours to draft 16 pages on a topic which was previously briefed

by the same firm simply cannot be justified.
32.

Of further significant note, Mr. Slotnick’s declaration shows that Loeb

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& Loeb spent 10.7 hours, totaling $4,285.00 in preparing the application for

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attorneys’ fees alone.

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-7DECLARATION OF DEAN A. DICKIE

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33.

Preparing the application for fees to this Court does not constitute fees

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incurred in filing the motion. Rather, that calculation constitutes fees on fees, not

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fees incurred in filing the Motion to Dismiss and as such, is not appropriate.

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B.
The Number of Senior Billing Attorneys Is Unreasonable and
Excessive
34.

Mr. Slotnick’s declaration provides the background and extensive

experience level of the five billing attorneys involved in this matter. [See Doc.
#128, p.5-6]. Of the five attorneys, Mr. Schwartz is the only junior associate noted
as billing on this matter. Of the 71.3 hours included in the “Time Detail,” only
eight (8) were expended by the least expensive attorney on the matter.
35.

Nowhere in the declaration does Mr. Slotnick provide any legitimate

reason, nor does one exist, as to why five separate attorneys, including a senior
partner and three senior associates, were required to bill time on motion to dismiss
which 1) sought a remedy to which Rister was not even entitled as a matter of law
(dismissal with prejudice); and 2) involved neither a complex legal issue or novel
creative analysis. This was a simple, straightforward motion to dismiss for lack of
proper service under FRCP Rule 4.
36.

Furthermore, given the experience level of the associates and partner

involved, there exists no legitimate reason why it was necessary for the billing
attorneys to expend 52 hours in drafting the 16 pages that make up the totality of
the legal argument presented.
C.
Erroneous Inclusion of Improper Billable Entries Should Be
Stricken
37.

Mr. Slotnick erroneously included the following entry in the “Time

Detail” allegedly incurred in filing the motion to dismiss: “DRAFT ANSWER FOR
FREDERIC RIESTERER TO PLAINTIFF’S COMPLAINT; DRAFT TIMELINE
AND SUMMARY OF KEY CASE EVENTS.” That billable entry is for 4.10
hours, totaling $2,050.00.
-8DECLARATION OF DEAN A. DICKIE

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38.

Surely, Mr. Slotnick is not taking the disingenuous position that

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drafting an answer on behalf of Mr. Riesterer is a billable entry related to the

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motion to dismiss filed on Rister’s behalf. That entry should be stricken.

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D.

Conclusion

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39.

Plaintiff’s counsel objects to the declaration and “Time Detail”

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submitted by Loeb & Loeb in support of its application for fees. It is insufficient in

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detail and explanation as to why five (5) lawyers and two (2) paralegals were

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necessary to file 16 pages on an issue that had previously been briefed. Plaintiff

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respectfully requests that the Court reduce the amount of fees requested by Rister

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due to the excessive and unreasonable nature and amount of the billable entries; the

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unreasonable staffing of this non-complex matter with senior attorneys; and the

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inclusion of blatantly erroneous and inapplicable bilking entries.

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40.

Plaintiff further requests that the Court also apply the lodestar amount

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towards a more reasonable number of hours expended on filing the second motion

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to dismiss multiplied by a reasonable hourly fee in this jurisdiction.

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I declare under penalty of perjury that the statements contained in this
Declaration are true and correct.
Executed this 26th day of April, 2011.

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Dean A. Dickie

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-9DECLARATION OF DEAN A. DICKIE

EXHIBIT “A”

BRYANCAVELLP
Jonathan Pink, California Bar No. 179685
2 3161 Michelson Drive, Suite 1500
Irvine; California 92612-4414
3 Telepnone: [phone]
FacsImile: [phone]
4 E-mail:
[e-mail]
1

5 BRYANCAVELLP

Kara E. F. Cenar, (Pro Hac Vice)

6 Mariangela M. Seale, (Pro Hac Vice)

161 North Clark Street, Suite 4300

7 Chicago,IL 60601-3315

Telepfione: @12) 602-5000
312) 602-5050
E-mail:
ara.cenar·bancave.com
ancave.com
9
8 FacsImile:

10 Attorney~ for Defendants

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WILLIAM ADAMS; STACY FERGUSON; ALLAN PINEDA; and JAIME

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11 GOMEZ, all individually and collectively'-as the music _gr()up THE BLACK EYED

PEAS; will.i.am music, lIc; TAB MAGNETIC PUBLISHING; CHERRY RIVER
12 MUSIC CO.; HEADPHONE JUNKIE PUBLISHING, LLC; JEEPNEY MUSIC,
INC.; EMI APRIL MUSIC, INC.
13

14

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

15

to 0::

(I)

16 BRYAN PRINGLE, an individual,

Plaintiff,

17

v.

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19 WILLIAM ADAMS, JR.; STACY
FERGUSON; ALLAN PINEDA; and
20 JAIME GOMEZ, all individuall~ and
collectively as the musicrl;rol&t e
21 Black Ekja Peas; DAVI G TTA;
FREDE CK RIESTERER; UMG
22 RECORDINGS, INC.; INTERSCOPE
RECORDS; EMI APRIL MUSIC,
23 INC.; HEADPHONE JUNKIE
PUBLISHING, LLC; WILL.LAM.
24 MUSIC, LLC; JEEPNEY MUSIC,
INC.; TAB MAGNETIC
25 PUBLISHING; CHERRY RIVER
MUSIC CO.; SCfHARE RIVOLI
26 PUBLISHING; STER EDITIONS;
and SHAPIRO, BERNSTEIN & CO.,
27
Defendants.
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Case No. SACVI0-1656 JST (RZx)
Hon. Josephine Staton Tucker
Courtroom lOA
INITIAL DISCLOSURES
Com2laint Filed:
Trial Date:

October 28, 2010
Not Assigned

IROIDOCS478249.1

INITIAL DISCLOSURES

1

Defendants WILLIAM ADAMS; STACY FERGUSON; ALLAN PINEDA;

2 and JAIME GOMEZ, all individually and collectively as the music group THE
3 BLACK EYED PEAS; will.i.am music, llc; TAB MAGNETIC PUBLISHING;
4 CHERRY RIVER MUSIC CO.; HEADPHONE JUNKIE PUBLISHING, LLC;
5 JEEPNEY MUSIC, INC.; EMI APRIL MUSIC, INC. hereby submit their Initial
6 Disclosures pursuant to Fed. R. Civ. P. 26(a)(1).
7

INITIAL DISCLOSURES

8
9
10

°

(i) the name and,

if known,

the address and telephone number ofeach

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individual likely to have discoverable information - along with the subjects of that

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unless the use would be solely for impeachment;

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1.

Bryan Pringle, c/o Hampton Holley LLP, 2101 East Coast Highway,

15 Ste 260, Corona del Mar, CA 92625. Subject Matter: Mr. Pringle is believed to

!D 0:
(I)

16 have knowledge regarding, among other things, the validity of the copyright being
17 asserted, deficiencies in the copyright registration and related copyright misuse,
18 factual information regarding the creation and dissemination of "Take a Dive" and
19 all derivative works thereof, including what he refers to as to the "guitar twang").
20 Mr. Pringle also is believed to have knowledge regarding Plaintiffs improper
21 dissemination and manipulation of Defendants' musical composition and recording
22 thereof, Plaintiff s use of a fabricated claim to use The Black Eyed Peas' reputation
23 for personal gain, and Plaintiffs communications with Ebony LaTrice Batts and/or
24 Manfred Mohr in furtherance of the same.
25

2.

UMG Recordings, Inc., c/o Caldwell Leslie & Proctor, PC, 1000

26 Wilshire Boulevard, Suite 600, Los Angeles, CA 90017. [phone]. Subject
27 Matter: The issues raised by Plaintiff regarding his claims that recordings of certain
28 musical compositions he alleges to have authored were sent to and received by
IRO I DOCS478249.1

PAGE 02

INITIAL DISCLOSURES

1

UMG, and financial issues related to the challenged musical composition and sound

2 recording.

3

3.

Interscope Records, c/o Caldwell Leslie & Proctor, PC, 1000 Wilshire

4 Boulevard, Suite 600, Los Angeles, CA 90017. [phone]. Subject Matter:
5 The issues raised by Plaintiff regarding his claims that certain recordings of musical

6 compositions he alleges to have authored were sent to and received by UMG, and
7 financial issues related to the challenged musical composition and sound recording

8

4.

David Guetta, c/o Loeb & Loeb LLP, 345 Park Avenue, New York,

9 NY 10154. [phone]. Subject Matter: Mr. Guetta is believed to have

10 knowledge regarding, among other things, the musical material employed in the

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musical composition "I Gotta Feeling," including the independent and anterior

12

creation of what Plaintiff refers to as the "guitar twang," as well as the recording

13 thereof.

14

5.

Frederick Riesterer, c/o Loeb & Loeb LLP, 345 Park Avenue, New

15 York, NY 10154. [phone]). Subject Matter: Mr. Riesterer is believed to

16 have knowledge regarding, among other things, the musical material employed in

17 the musical composition "I Gotta Feeling," including the independent and anterior
18 creation of what Plaintiff refers to as the "guitar twang," as well as the recording
19 thereof.
20
21

6.

Shapiro, Bernstein & Co., c/o Loeb & Loeb LLP, 345 Park Avenue,

New York, NY 10154. [phone]). Subject Matter: A representative of this

22 company is believed to have knowledge regarding, among other things, the
23 ownership and exploitation of the musical material employed in the musical
24

composition "I Gotta Feeling," including the independent and anterior creation of

25 what Plaintiff refers to as the "guitar twang."

26

7.

Williams Adams, Bryan Cave LLP, 161 N. Clark Street, Suite 4300,

27 Chicago, Illinois, 60601-3305. [phone]. Subject Matter: Mr. Adams is
28 believed to have knowledge regarding, among other things, the authorship of the
IROIDOCS478249.\

INITIAL DISCLOSURES

PAGE 03

1 musical composition "I Gotta Feeling," including the independent and anterior

2 creation of what Plaintiff refers to as the "guitar twang" as well as the performance
3 thereof embodied in the challenged sound recording. Mr. Adams is also believed to
4 have information concerning reputational suffered by The Black Eyed Peas in
5 connection with Plaintiff s action, as well as financial issues related to the

6 challenged musical composition and challenged sound recording thereof. 1

(iiJ a copy-or a description by category and location-of all documents,

7

8 electronically stored information, and tangible things that the disclosing party has
9 in its possession, custody, or control and may use to support its claims or defenses,
10 unless the use would be solely for impeachment;

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Audio exhibits of the sound recording of the musical composition,

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"Take a Dive." (provided in connection with Preliminary injunction proceedings) .

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2.

13

Audio exhibits of the sound recording of the musical composition,

14 "Take a Dive (Dance Version)." (provided in connection with Preliminary

15 injunction proceedings).

ID 0:

3.

16

Other audio exhibits (provided in connection with Preliminary

17 injunction proceedings).

4.

18

Documents, references, and other public information cited to or

19 submitted by Defendants in connection with the preliminary injunction proceedings.

5.

20
21

Documents, electronically stored information, and tangible things

related to the creation, constituent elements, performance, recording of and/or

22 financial information related to the musical composition, "I Gotta Feeling" are
23 located in whole or in part at the addresses of the various Defendants or their
24

counsel's offices. To the extent the aforementioned documents and things contain

25 proprietary and confidential information, a mutual agreement governing
26

confidentiality will be required.

27
I

These disclosing parties reserve the right to supplement this list of witnesses to include, among others, witnesses

28 disclosed by other parties.
IROIDOCS478249.I

INITIAL DISCLOSURES

1

6.

Documents, electronically stored information, and tangible things

2 related to the various subject matters identified under Plaintiff above are believed to
3 be located at his address as identified in the Complaint, or pursuant to preservation
4 requests, in Plaintiff s counsel's office in Chicago.
5

7.

Documents, electronically stored information, and tangible things

6 related to the applications and registrations of claims to copyright in the works at
7 issue in this case, are located in the U.S. Copyright office, as well as the files of the
8 owners of the respective applications and registration certificates.
9

Documents, electronically stored information, and tangible things

10 related to statements that Plaintiff made to various media outlets relating to, among

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12 composition(s) and sound recording(s) thereof, and po stings by Mr. Pringle are

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13 believed to be located at his address or, pursuant to preservation requests, in

14 Plaintiff s counsel's office in Chicago.
15

9.

Given the current status of the litigation, and the lack of specificity to

16 the basis for Plaintiff s claim, including which particular musical composition and
17 recording thereof he claims were infringed, it is not yet believed that each category
18 set forth above may be used to support a defense or that such defense may be
19 necessary. The categories have therefore been provided conditionally. To the
20 extent the aforementioned documents, electronically stored information, or tangible
21 things contain proprietary and confidential information, a mutual agreement
22 governing confidentiality may be required. Also, it is anticipated that additional
23 documents will be located through further investigation and discovery.
24 Accordingly, Defendants may provide a supplemental disclosure at a later date.
25

(iii) a computation ofeach category ofdamages claimed by the disclosing

26 party-who must also make available for inspection and copying as under Rule 34
27 the documents or other evidentiary material, unless privileged or protected from
28 disclosure, on which each computation is based, including materials bearing on the
IROlDOCS478249. )

INITIAL DISCLOSURES

1
2

nature and extent of injuries suffered; and
Defendants will seek to recover all attorneys' fees and costs incurred herein.

3 To date, Defendants have not alleged any claims against Plaintiff for damages but
4 would seek to off set any damage claim of Plaintiff by the value of the unjust
5 enrichment obtained, and or the value and benefit obtained by Plaintiff beyond the

6 scope of the copyright registration. Notwithstanding these initial disclosures,
7 Defendants reserve the right to allege a claim against Plaintiff for damages. If

8 Defendants assert such a claim, Defendants will provide a computation of damages,
9 to the extent that such a computation is possible, and to the extent required by the
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Pursuant to Fed. R. Civ. P. 26(a)(1)(A)(iv), these responding defendants are

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16 not aware of any applicable insurance agreement at this time. If any agreements that
17 may provide coverage are discovered in the future, Defendants will provide a
18 supplemental disclosure.
19 Dated: February 28,2011
20

BRYAN CAVE LLP
Kara E.F. Cenar
Jonathan~P.i. .~~
.

21
22

Jon an Pink
torneys for Defendants
WILLIAM ADAMS; STACY FERGUSON;
ALLAN PINEDA; and JAIME GOMEZ, ali
individu_a]y and collectively as the music
group THE BLACK EYED PEAS; wilLi.am
mUSIC, Hc; TAB MAGNETIC
PUBLISHING; CHERRY RIVER MUSIC
CO.; HEADPHONE JUNKIE
PUBLISHING, LLC; JEEPNEY MUSIC,
INC.; EMI APRIL MUSIC, INC.

23
24
25
26
27
28
IRO i DOCS478249.i

INITIAL DISCLOSURES

PROOF OF SERVICE
CCP l013A(3) REVISED 5/1/88

1
2
3
4
5
6
7

STATE OF CALIFORNIA, COUNTY OF ORANGE
I am employed in the County of Orange, State of California. I am over the
age of 18 and not a party to the within action. My business address is: 3161
Michelson Drive, Suite 1500, Irvine, CA 92612-4414.
On February 28, 2011, I served the foregoing document(s) described as:
INITIAL DISCLOSURES
on all interested parties in this action by placing fXl a true copy D the
original thereof enclosed in sealed envelopes addressectaS follows:

8

Dean A. Dickie
Miller Canfield Paddock and Stone, P.L.C.
225 West Washington Street, Suite 2600
Chicago, IL 60606

Ira Gould
Ryan L. Greely
Gould Law Group
120 North LaSalle Street, Suite 2750
Chicago, IL 60602

Phone: [phone]
Fax: [phone]
Email:
[e-mail]
[e-mail]

Linda M. Burrow
Caldwell Leslie & Proctor, PC
1000 Wilshire Blvd., Suite 600
Los Angeles, CA 90017-2463

10

Phone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

George L. Hampton IV
Colin C. Holley
Hampton Holley LLP
2101 East Coast Highway, Suite 260
Corona del Mar, CA 92625

9

Attorneys for Plaintiff BRYAN
PRINGLE
Phone: [phone]
Fax: [phone]
Email:
[e-mail]

Attorneys for Universal Music
Group, Inc.; UMG Recordings,
Inc.; Interscope Records
Phone:
Fax:
Email: [e-mail]

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19
20
21
22
23
24
25
26
27
28
465999.1

PROOF OF SERVICE

Donald A. Miller
Loeb & Loeb LLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067-4120

1
2
3
4
5
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21
22

Attorneys for Shapiro,
Bernstein & Co., Inc.; Rister
Editions; David Guetta
Phone: [phone]
Fax: [phone]
Email: [e-mail];
[e-mail]

D BY CMlECF NOTICE OF ELECTRONIC FILING: I caused said
document(s) to be served by means of this Court's electronic transmission of the
Notice of Electronic filing through the Court's transmission facilities, to the parties
and/or counsel who are registerea CMlECF Users set forth in the service list
obtained from this Court.
BY MAIL - As follows: I am "readily familiar" with the firm's practice of
collectIOn and processing correspondence for mailing. Under that practice it would
be deposited wIth U.S. Postal Service on that same day with postage thereon fully
prep-aId at Irvine, California in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or
postage meter date is more than one day after date of deposit for mailing in affidavit.
D BY FACSIMILE - I caused said document to be transmitted to a facsimile
machine maintained by the office of the addressee( s) at the facsimile machine
number( s) indicated. Said facsimile number( s) are the most recent numbers
appearing on documents filed and served by the addressee(s). I received electronic
confirmation from the facsimile machine tliat said document was successfully
transmitted without error.
BY OVERNIGHT DELIVERY - Depositing the above document(s) in a
"box orother facility regularly- maintained by- FedEx in an envelope or package
designated by FedEx with delivery fees paia or provided for.
BY PERSONAL DELIVERY - I caused such envelope to be hand
deliver'ea to the offices of the addressee.
IX! BY EMAIL - I caused a true copy of the foregoing document(s} to be
servedby electronic email transmission at the time shown on each transmission, to
each interested party at the email address shown above. Each transmission was
reported as complete and without error.
IX! FEDERAL - I declare that I am employed in the office of a member of the
bar of tills Court at whose direction the service was made.
Executed on February 28, 2011, at Irvine, California.

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23
24
25
26
27
28
465999.1

2
PROOF OF SERVICE

EXHIBIT “B”

Founded in 1852
by Sidney Davy Miller

LLER
IELD

DEAN A. DICKIE

Miller, Canfield, Paddock and Stone, P.L.C.
225 W. Washington, Suite 2600
Chicago, llIinois 60606
TEL [phone]
FAX [phone]
www.millercanfield.com

TEL [phone]
FAX [phone]
E·MAIL [e-mail]

MICHIGAN: Ann Arbor
Dctroit • Grund Rapids
Kalamazoo. Lansing
Saginaw. Troy
FLORIDA: Naples
ILLINOIS: Chicago
NEW YORK:

New York

CANADA: Toronto. Windsor
CHINA: Shanghai
MIlXICO: Monterrey

POLAND: Gdynia

Warsaw. Wroclaw

March 15, 2011

Via Email
Barry I. Slotnick, Esq.
LOEB & LoEB LLP
345 Park Avenue
New York, NY 10154
Kara Cenar, Esq.
BRYAN CAVE LLC
161 North Clark Street
Suite 4300
Chicago~ IL 60601
Re:

Pringle v. William Adams Jr., et al. - Case No. SACV10-1656 JST

Dear Mr. Slotnick and Ms. Cenar:
The February 28, 2011 Rule 26 Disclosures served by Bryan Cave
indicate that the address for Defendant Frederic Riesterer is the law finn of Loeb &
Loeb LLP, 345 Park Avenue, New York, NY 10154. Given that this was the address
that counsel provided us in a federal pleading, we attempted to serve Mr. Riesterer
at that address. Our process server infonns us that he spoke with Loeb & Loeb's
managing partner regarding acceptance of service, that the managing partner
called Mr. Riesterer ort the phone, spoke with him, and relayed that, contrary to
the representations made in the Rule 26 disclosures, Loeb & Loeb is, in fact, not
representing him.
In addition to identifying the address for Loeb & Loeb as
Mr. Riesterer's address, Bryan Cave has also filed a declaration on Mr. Riesterer's
behalf with the federal court in the Central District of California.
As it is apparent that both of your offices have had contact with
Mr. Riesterer, either by way of speaking with him on the phone, or else
communicating with him in order to file a Declaration on his behalf, we request
that you provide us with his address in France so that we may serve him.

MILLER, CANFIELD, PADDOCK AND STONE, P .L.C.

Bany 1. Slotnick, Esq.

MTLLER
CANFIELD

Kara Cenar, Esq.
March 15,2011

Page 2

We look forward to hearing from you by Thursday with the requested
information. If you have· any questions, do not hesitate to contact us.
Very truly yours,

~R~~E'P.L.C'
Dean A. Dickie
DAD/mbs

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

EXHIBIT “C”

BARRY I. SLOTNICK

Partner
345 Park Avenue
New York. NY 10154

Direct 212.407.4162
Main 212.407.4000
212.202,7942
Fax
[e-mail]

Via E-mail

March 16, 2011
Dean A. Dickie, Esq.
Miller, Canfield, Paddock and Stone, P,L.C.
225 W. Washington, Suite 2600 Chicago,
Illinois 60606
Re:

Pringle v. Adams, et a/., Case No, SACV1 0-1656 (JST)

Dear Mr. Dickie:
This is in response to your March 15,2011 letter. As you know from our February 13, 2010
Memorandum in Support of Motion to Dismiss, neither we nor any defendants are authorized to
accept service on Mr. Riesterer's behalf. Neither the Rule 26 initial disclosures (which are not a
pleading) nor any declaration submitted by another party changes that fact. Certainly you must
be aware that a lawyer, merely by the fact of generally representing a client, does not become
an agent for service of process.
Your letter contains numerous errors of fact, which we will assume were the result of
misstatements to you by your process server. The person with whom your process server
spoke did not identify himself as our managing partner, but as our managing clerk. While both
are valuable members of our firm, they are hardly interchangeable or likely to be confused with
one another. Indeed, our clerk advised me that he has had many prior dealings with your
process server, Our clerk then spoke with me, not Mr. Riesterer, and confirmed to your process
server only that, as you already knew, we are not authorized to accept service on Mr.
Riesterer's behalf.
Lastly, with respect to your req uest that we provide Mr. Riesterer's address in France, even
assuming we had that information, which we do not, we are not aware of any requirement that
we provide that information to you. I think it fitting that on numerous occasions when other
counsel for a defendant requested the most basic information regarding your client's claims, you
adamantly rejected out of hand any such "expedited discovery",

Ba~r~~~~~::==~--------~
Partner
cc:

Kara Cenar, Esq.

Los Angeles

New York

Chicago

Nashville

A limited liability partnership incillding pmres5ional corporations

www.loeb.com

NY890137.2
213532-10005

EXHIBIT “D”

Founded in 1852
by Sidney Davy Miller

LLER
IELD

DEAN A. DICKIE

Miller, Canfield, Paddock and Stone, P.L.C.
225 W. Washington, Suite 2600
Chicago, Illinois 60606
TEL [phone]
FAX [phone]
www.rnillercanfield.com

TEL [phone]
FAX [phone]
E-MAIL [e-mail]

MICIDGAN: Ann Arbor
Detroit. Grand Rapids
Kalamazoo. Lansing
Saginaw. Troy
FLORIDA: Naples
ILLINOIS: Chicago
NEW YORK: New York
CANADA: Toronto. Windsor
CHINA: Shanghai
MEXICO: Monterrey
POLAND: Gdynia
Warsaw. Wroclaw

March 18, 2011

Via Email
Bany I. Slotnick, Esq.
& LoEB LLP
345 Park Avenue
New York, NY 10154

LoEB

Re:

Pringle v. William Adams Jr., et at - Case No. SACVIO-1656
JST-Service on Rister Editions and Square Rivoli Publishing

Dear Mr. Slotnick:
We are writing in response to your March 18, 2011 letter regarding
service on Defendants Rister Editions and Square Rivoli Publishing.
As you know, the Federal Rules of Civil Procedure specifically allow
service of process by delivering a copy of the summons and operative complaint "to
an agent authorized by appointment or by law to receive service of process"
including a foreign entity's managing agent. Fed. R. Civ. P. 4. Shapiro Bernstein
is Rister Editions and Squire Rivoli's representative in the United States and has
been since 2009. During our investigation and research into addresses for each of
these defendants, we uncovered the Shapiro Bernstein website which states
"Shapiro Bernstein is representing Square Rivoli Music and Rister Editions of
France for the USA." See attached website page.
From the tone of your correspondence demanding that service be
withdrawn, it appears that you are attempting to help these defendants avoid
service, despite the fact that Shapiro Bernstein is their managing agent in the
United States. This concern is amplified by your refusal to provide any contact
information for Defendant Riesterer, and we hope it is not the case. We are happy
to discuss this matter with you further. If you would like to set up a call, let us
know.
Very truly yours,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

Dean A. Dickie
DAD/mbs
MILLER, CANFIELD, PADDOCK AND STONE, P .L.C.

EXHIBIT “E”

II

BARRY I. SLOTNICK
Partner

Direct 212.407.4162
Main 212.407.4000
Fax
212.202.7942
[e-mail]

345 Park Avenue
New York, NY 10154

LOEB&
LOEBLLP

Via E-mail

March 18, 2011
Dean A. Dickie, Esq.
Miller, Canfield, Paddock and Stone, P.L.C.
224 W. Washington, Suite 2300
Chicago, Illinois 60606
Re:

Pringle v. Adams, et aI., Case No. SACV10-1656 (JST)

Dear Mr. Dickie:
We write with regard to your improper and harassing attempts to use our client, Shapiro,
Bernstein & Co., Inc. ("Shapiro Bernstein"), as a means to effect serVice of process on other
unrelated entities, Rister Editions and Square Rivoli. Because the Court has already ruled that
such service is ineffective, we can only assume that the purpose of your recent attempted
service is solely to harass our clients and force us to engage in additional costly motion practice.
As you know, on November 5,2010 and December 2,2010, you attempted to serve process on
Square Rivoli and Rister Editions by delivering a copy of the summons and complaint to Shapiro
Bernstein's offices. By letter dated December 8, 2010, I informed you that "Shapiro Bernstein is
not an agent for service of process and is not authorized to accept service on [Frederic
Riesterer's, Rister Editions' or Square Rivoli Publishing's] respective behalves ." Nevertheless,
on December 12, 2010, you proceeded to file purported proofs of service on Rister Editions and
Square Rivoli based on this ineffective service, thereby forcing us to incur the cost of a motion
to dismiss based on improper service. (Dkt. Nos. 53-1, 53-2.)
In its January 27, 2011 Order, the Court recognized th. t your purported service was invalid, and
a
ordered you to serve the summons and complaint, in a proper manner, within 120 days of your
commencement of the action on October 28,2010 (i.e., by February 28,2011) . We were
therefore astonished to learn that on Wednesday of this week, you again attempted to serve
process on Rister Editions and Square Rivoli by delivering copies of the summons and
complaints to Shapiro Bernstein's offices. Given our prior communications and the Court's
January 27th Order, there is absolutely no good faith basis for your continued belief that service
on Rister Editions and/or Square Rivoli can properly be effected via Shapiro Bernstein.
In light of the above, we demand that, by the close of business on Monday, March 21, 2011, you
acknowledge in writing: (i) your withdrawal of any and all attempted service on Rister Editions
and/or Square Rivoli via Shapiro Bernstein, and (ii) that you will refrain from any such attempted
service in the future. If you do not, we will be forced to file yet another motion to dismiss, and to
seek to recover all of our attorneys fees and costs incurred in connection therewith.

Los Angeles

New York

Chicago

Nashville

Washington, DC

Beijing

',', \.

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1.. "

iI

Dean A. Dickie, Esq.
March 18, 2011
Page 2

Nothing in this letter is intended to waive, or shall be construed as a waiver, of our clients'
respectiVe rights and remedies, at law or in equity, alt off which are expressly reserved.

Very t( uly yours, )

Iy/"
Barry I. Slot ick
Partner

NY890519.1
213532-10005

EXHIBIT “F”

BARRY I. SLOTNICK
Partner

345 Park Avenue
New York, NY 10154

Direct 212.407.4162
Main 212.407.4000
Fax
212.202.7942
[e-mail]

Via E-mail

March 21,2011
Dean A. Dickie, Esq.
Miller, Canfield, Paddock and Stone, P.L.C.
224 W. Washington, Suite 2300
Chicago, Illinois 60606
Re:

Pringle v. Adams. et aI., Case No. SACV10-1656 (JST)

Dear Mr. Dickie:
This is in response to your March 18, 2011 letter which seeks contact information for Frederic
Riesterer,1 with reference to your March 15 letter, and our March 16 letter, regarding your
improper attempt to serve Mr. Riesterer via our offices. Because your March 15 letter sought
Mr. Riesterer's contact information from Loeb & Loeb LLP in its own capacity, and not as
counsel for Shapiro Bernstein, we properly informed you by letter dated March 16 that we did
not have Mr. Riesterer's contact information and were under no obligation to provide it to you.
Your March 18 letter now appears to request Mr. Riesterer's contact information from us as
counsel for Shapiro Bernstein. We have therefore consulted with our client and will agree to
furnish Mr. Riesterer's contact information to you in that capacity.
We note, however, that on January 27,2011, the Court ruled that you had 120 days from the
October 28,2010 commencement of this action (i.e., until February 28, 2011) to serve the
summons and complaint(s). As such, our agreement to provide you with Mr. Riesterer's contact
information is without prejudice to his rights to challenge any subsequent service of process.
We presume that this addresses the concerns raised in your March 18, 2011 letter. If you wish
to discuss this matter further, please do not hesitate to contact me.

Although your letter demanded a response by the close of business on March 18 (the same
day it was sent), we did not receive your letter until it was transmitted to us by email after the
close of business on that date. Consequently, we were not in a position to respond in the time
frame you demanded.
1

Los Angeles

New York

Chicago

Nashville

A limited Ii.bili')' partn.lShip including professional corporations

www.loeb.com