Bryan Pringle v. William Adams Jr et al

Filing 134

NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion to Dismiss Party, 126 requesting reconsideration of award of sanctions pursuant to 28 U.S.C. 1927, filed by plaintiff Bryan Pringle. Motion set for hearing on 6/13/2011 at 10:00 AM before Judge Josephine Staton Tucker. (Attachments: # 1 Memorandum in support of Motion to Reconsider April 12, 2011 Order Awarding Sanctions, # 2 Declaration of Dean A. Dickie in support of Motion to Reconsider April 12, 2011 Order Awarding Sanctions)(Holley, Colin)

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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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BRYAN PRINGLE, an individual,

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Plaintiff,
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v.
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WILLIAM ADAMS, JR.; STACY
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FERGUSON; ALLAN PINEDA; and
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JAIME GOMEZ, all individually and
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collectively as the music group The Black )
Eyed Peas, et al.,
)
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Defendants.
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Case No. SACV 10-1656 JST(RZx)
DECLARATION OF
DEAN A. DICKIE IN SUPPORT
OF MOTION TO RECONSIDER
THE COURT’S APRIL 12, 2011
ORDER AWARDING SANCTIONS
PURSUANT TO 28 U.S.C. § 1927
DATE: June 13, 2011
TIME: 10:00 a.m.
CTRM: 10A

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Dean A. Dickie, having personal knowledge of the facts contained within this

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declaration, states that if called as a witness, he could testify regarding the

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following:

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1.

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

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P.L.C. (“Miller Canfield”) and am lead counsel for Plaintiff, Bryan Pringle

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(“Plaintiff” or “Pringle”) in the above-captioned action. I am a member in good

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standing of the State Bar of Illinois.

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2.

The litigation team for Pringle includes Dean A. Dickie, Katharine N.

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Dunn and Kathleen E. Koppenhoefer from Miller Canfield, Ryan Greely and Ira

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Gould from Gould Law Group, and George Hampton and Colin Holley of

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HolleyHampton LLP.

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3.

On March 9, 2011, the entire litigation team for Plaintiff met to discuss

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a variety of issues regarding this case, including a review of this Court’s Order of

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January 27, 2011.

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4.

In connection with that review, one of the issues that the litigation

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team discussed was the status of Plaintiff’s efforts in attempting service of Rister

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Editions and Frederic Riesterer.

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5.

Prior to the March 9, 2011 meeting, the litigation team considered

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options of service on Rister Editions pursuant to the Hague Convention and agreed

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given the requirements of such service, it was not the best option for “promptly”

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achieving service on Rister Editions.

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6.

Accordingly, during the March 9th meeting, the team examined the

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language of the Court’s January 27, 2011 order for purposes of discussing exactly

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what the Court had determined was improper about the prior service of Rister

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Editions by serving Shapiro Bernstein & Co. (“Shapiro”).

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7.

The team discussed the fact that the Court specifically noted

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“Defendants argue that Plaintiff’s proofs of service on Rister state that service was

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made not on any employee or service agent of Rister, but rather on Defendant
ND: 4823-9173-4537, v. 1

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Shapiro. Plaintiff does not dispute this.” (emphasis added) [Doc. #95] and that the

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Court included no further analysis or comment regarding any other service

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deficiency.

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8.

Based upon their review of the January 27, 2011 order, the attorneys

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all agreed that the Court had clearly taken issue with the fact that the proof of

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service documentation itself failed to state that Shapiro had been served as the agent

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or representative of Rister Editions in the United States.

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This interpretation of the Court’s January 27, 2011 order was a

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consensus and the entire litigation team was in agreement as to what needed to be

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remedied with respect to the proof of service, which was to include a designation of

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Shapiro as “agent” or “representative” of Rister Editions in the United States.

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10.

Shapiro’s disavowal of its agency relationship with Rister Editions was

also discussed during that litigation team meeting.
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On that subject, the litigation team discussed:

(i) the difficulties

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experienced in attempting to obtain Frederic Riesterer’s contact information from

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Shapiro; (ii) the apparent efforts of Shapiro to assist in Riesterer’s effort in avoiding

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service; and (iii) the fact that Shapiro was most likely doing the same with respect

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to Rister Editions.

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12.

The team further discussed the fact that based upon the evidence which

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had been obtained and was now available to them - as set forth on both Shapiro’s

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own website and in the liner notes for “The E.N.D.” CD - Shapiro was at the very

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least the implied agent of Rister in the United States despite its position otherwise.

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[See Declaration of Jeremy Katz, Doc. #123.]

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13.

Further, the team reviewed relevant case law holding that despite

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Shapiro’s express denial of its agency relationship with Rister Editions, there was a

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good faith basis for asserting that Shapiro it undoubtedly the implied agent as a

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matter of law and that service upon Shapiro was still appropriate if the proofs of

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ND: 4823-9173-4537, v. 1

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service made it clear that service of process was being effectuated on Shapiro as the

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“Agent” under Rule 4 of the Federal Rules of Civil Procedure.
14.

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Accordingly, the litigation team concluded that upon the clear

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evidence available, service of Rister Editions via Shapiro was proper as a matter of

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law.

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The team then agreed that in order to best comply with the Court’s

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order, the proof of service on Shapiro should specifically designate Shapiro as agent

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and representative of Rister Editions in the United States.

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16.

Thereafter, the team amended the proof of service to specifically state

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that Shapiro was being served as “the agent, United States representative for and

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United States administrator of Rister Editions” and service was promptly

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effectuated on Shapiro.

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At no point did the litigation team conclude that the Court’s

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January 27, 2011 order suggested that Shapiro was not the agent or representative

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for Rister Editions or that the Court had previously determined that the provision of

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Rule 4 of the Federal Rules of Civil Procedure were not to be used in completing

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service of process on Rister Editions promptly. To the contrary, since the entire

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litigation team agreed that in its January 27, 2011 Order, the Court appeared to be

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taking issue with the “proof of service” documentation, not the method, as

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appropriately proof of service document, as amended, would be proper.

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Attached to this Declaration as Exhibit A is a true and correct copy of

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Shapiro’s Initial Rule 26 Disclosures served on February 28, 2011, in which

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Frederic Riesterer is identified as having discoverable information but no address

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was provided.

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Attached to this Declaration as Exhibit B is a true and correct copy of

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the Black Eyed Peas Defendants’ Initial Rule 26 Disclosures, which also identified

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Frederic Riesterer as a person with discoverable information, but which identified

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Loeb & Loeb, counsel for Shapiro, as the address for Riesterer.
ND: 4823-9173-4537, v. 1

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20.

Attached to this Declaration as Exhibit C is a true and correct copy of

a letter I received on March 16, 2011 from Barry Slotnick.
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Attached to this Declaration as Exhibit D is a true and correct copy of

a letter I sent to Barry Slotnick and Kara Cenar on March 18, 2011.
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Attached to this Declaration as Exhibit E is a true and correct copy of a

letter I received on March 21, 2011 from Barry Slotnick.
I declare under penalty of perjury that the statements contained in this
Declaration are true and correct.
Executed this 10th day of May, 2011.

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Dean A. Dickie

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ND: 4823-9173-4537, v. 1

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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

EXHIBIT C
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NY890137.2
213532-10005

EXHIBIT D
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EXHIBIT D
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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.
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Los Angeles

New York

Chicago

Nashville

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

www.loeb.com

EXHIBIT E
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