Bryan Pringle v. William Adams Jr et al

Filing 262

NOTICE OF MOTION AND MOTION to Dismiss defendants Cherry River Music Co, EMI April Music Inc, Stacy Ferguson(collectively as the music group the Black Eyed Peas), Stacy Ferguson(individually), Jaime Gomez(collectively as the music group the Black Eyed Peas), Jaime Gomez(individually), Headphone Junkie Publishing LLC, Interscope Records, Jeepney Music Inc, William Adams Jr(individually), William Adams Jr(collectively as the music group the Black Eyed Peas), Allan Pineda(collectively as the music group the Black Eyed Peas), Allan Pineda(individually), Square Rivoli Publishing, Tab Magnetic Publishing, UMG Recordings Inc, Will.I.Am Music LLC filed by plaintiff Bryan Pringle. Motion set for hearing on 5/7/2012 at 10:00 AM before Judge Josephine Staton Tucker. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Kathleen E. Koppenhoefer)(Holley, Colin)

1 Dean A. Dickie (appearing Pro Hac Vice)
[e-mail]
2 Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
[e-mail]
3 MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
225 West Washington Street, Suite 2600
4 Chicago, IL 60606
Telephone: [phone]
5 Facsimile: 312.460.4288

LLP

HAMPTONHOLLEY

2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

6 George L. Hampton IV (State Bar No. 144433)
[e-mail]
7 Colin C. Holley (State Bar No. 191999)
[e-mail]
8 HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
9 Corona del Mar, California 92625
Telephone: [phone]
10 Facsimile: 949.718.4580
11 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,
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v.
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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.
)

16 BRYAN PRINGLE, an individual,

Case No. SACV 10-1656 JST(RZx)

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MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT
OF PLAINTIFF BRYAN
PRINGLE'S MOTION FOR
VOLUNTARY DISMISSAL OF
CERTAIN PARTIES WITHOUT
PREJUDICE AND WITHOUT
FEES OR COSTS

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4813-1652-0975 - v. 1

DATE: May 7, 2012
TIME: 10:00 a.m.
CTRM: 10A

1 I.

INTRODUCTION

2

Plaintiff Bryan Pringle respectfully requests that this Court issue an order,

3 pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, allowing the
4 voluntary dismissal of defendants William Adams, Jr., Stacy Ferguson, Allan Pineda
5 and Jaime Gomez, all individually and collectively as the music group the Black
6 Eyed Peas, UMG Recordings, Inc., Interscope Records, EMI April Music, Inc.,
7 Headphone Junkie Publishing, LLC, Will.I.Am, LLC, Jeepney Music, Inc., Tab
8 Magnetic Publishing, Cherry River Music Co., and Square Rivoli Publishing
9 (collectively, “Remaining Defendants”) without prejudice and without requiring
10 Plaintiff to pay Remaining Defendants’ attorneys’ fees or costs.

LLP

HAMPTONHOLLEY

2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

11

Plaintiff brought this action against Remaining Defendants, as well as against

12 defendants David Guetta, Frederic Riesterer, Rister Editions and Shapiro, Bernstein
13 & Co. (“Shapiro, Bernstein”), on October 28, 2010, with a First Amended Complaint
14 filed on November 19, 2010.
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On November 17, 2011, Mr. Guetta, Mr. Riesterer and Shapiro, Bernstein filed

16 a motion for summary judgment in this action. On March 30, 2012, this Court
17 granted the motion for summary judgment filed by Guetta, Riesterer and Shapiro,
18 Bernstein. Plaintiff intends to appeal the summary judgment order, and believes that
19 a voluntary dismissal of Remaining Defendants without prejudice will most
20 efficiently bring this action to conclusion in this Court and allow it to move forward
21 on the appellate level.
22

Plaintiff voluntarily dismissed Rister Editions from this action on April 5,

23 2012, pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
24

Plaintiff has not previously dismissed any action based upon or including the

25 same claim in any Court of the United States or of any state. Although three
26 defendants in this action prevailed on a motion for summary judgment, Remaining
27 Defendants have not brought a motion for summary judgment, nor did they join in
28 the motion for summary judgment brought by Mr. Guetta, Mr. Riesterer and Shapiro,
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4813-1652-0975 - v. 1

1 Bernstein. Plaintiff seeks voluntary dismissal of Remaining Defendants without
2 prejudice in order to best conserve the resources of the Court and the parties pending
3 Plaintiff’s appeal of the grant of summary judgment in favor of Mr. Guetta, Mr.
4 Riesterer and Shapiro, Bernstein.
5 II.

COMPLIANCE WITH MEET AND CONFER REQUIREMENT

6

This motion is made following the conference of counsel pursuant to Local

7 Rule 7-3 which took place on April 5, 2012. The details of the conference of counsel
8 are set forth in the Declaration of Kathleen E. Koppenhoefer filed concurrently
9 herewith. See Declaration of Kathleen E. Koppenhoefer, at ¶¶ 2-4.

LLP

HAMPTONHOLLEY

ARGUMENT

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2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10 III.

A.

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Plaintiff Should Be Permitted to Voluntarily Dismiss the Remaining
Defendants Without Prejudice

Rule 41 (a)(2) provides:
Except as provided in Rule 41(a)(1), an action may be
dismissed at the plaintiff's request only by court order, on
terms that the court considers proper. If a defendant has
pleaded a counterclaim before being served with the
plaintiff's motion to dismiss, the action may be dismissed
over the defendant's objection only if the counterclaim can
remain pending for independent adjudication. Unless the
order states otherwise, a dismissal under this paragraph (2)
is without prejudice.

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21 Fed R. Civ. P. 41(a)(2). The purpose of this rule is “to permit a plaintiff to dismiss
22 an action without prejudice so long as the defendant will not be prejudiced or
23 unfairly affected by dismissal.” Creative Labs, Inc. v. Orchid Tech., No. C 93-3429
24 TEH, 1997 U.S. Dist. LEXIS 13911, at *3 (N.D. Cal. Sept. 12 1997) (citing
25 Stevedoring Svcs. of Am. v. Armilla Intern., 889 F.2d 919, 921 (9th Cir. 1989). Thus,
26 “[a] district court should grant a motion for voluntary dismissal under Rule 41(a)(2)
27 unless a defendant can show that it will suffer some plain legal prejudice as a result.”
28 Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001); see also Creative Labs, 1997
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4813-1652-0975 - v. 1

1 U.S. Dist. LEXIS 13911, at *3 (citing Hamilton v. Firestone Tire & Rubber, 679
2 F.2d 143, 145 (9th Cir. 1982)). Notably, plain legal prejudice “does not result simply
3 because a suit remains unresolved” or because “the defendant faces the prospect of a
4 second lawsuit.” Mitchell-Jones v. Menzies Aviation, Inc., No. C10-1190JLR, 2011
5 U.S. Dist. LEXIS 82889, at *5 (W.D. Wash. Jul. 28, 2011) (citing Westlands Water
6 Dist. v. U.S., 100 F.3d 94, 97 (9th Cir. 1996)).
7

None of Remaining Defendants has pleaded a counterclaim. Although

8 Remaining Defendants have answered Plaintiff’s complaint and undergone
9 discovery, neither the fact that Remaining Defendants may have incurred substantial
10 expense, nor the fact the Remaining Defendants may have begun trial preparations

LLP

HAMPTONHOLLEY

2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

11 constitutes a legal prejudice warranting the denial of a Rule 41(a)(2) motion.
12 Hamilton, 679 F.2d at 145-46. In addition, there has been no adjudication on the
13 merits as to these Remaining Defendants.
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Further, dismissal without prejudice will not prejudice Remaining Defendants,

15 nor cause them legal harm. Instead, it will streamline the litigation process by
16 allowing Plaintiff to more immediately appeal the grant of summary judgment in
17 favor of defendants Mr. Guetta, Mr. Riesterer, and Shapiro Bernstein.
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Finally, should Plaintiff prevail on appeal, a voluntary dismissal will not have

19 caused Remaining Defendants legal prejudice—no “prejudice to some legal interest,
20 some legal claim, [or] some legal argument.” Westlands, 100 F.3d at 97. Any
21 subsequent suit by Plaintiff will be based on the same facts, and there will be nothing
22 precluding Remaining Defendants from then raising during the subsequent litigation
23 the same arguments and defenses that they may have been preparing. Indeed, all of
24 the preparation conducted by Remaining Defendants in this action would be
25 necessary to them in any subsequent action brought by Plaintiff.
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4813-1652-0975 - v. 1

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B.

The Court Should Not Condition Plaintiff’s Voluntary Dismissal of

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Remaining Defendants on Payment of Attorneys’ Fees or Costs.

3

Plaintiff anticipates that Remaining Defendants will ask this Court to condition

4 any voluntary dismissal upon the payment of Remaining Defendants’ attorneys’ fees
5 and/or costs. Such a request has no merit under the circumstances. In connection
6 with a Rule 41(a)(2) motion, “a defendant is entitled only to recover … attorneys
7 fees or costs for work which is not useful in continuing litigation between the
8 parties.” Koch v. Hankins, 8 F.3d 650, 652 (9th Cir. 1993); see also Westlands, 100
9 F.3d at 97.
As noted above, should Plaintiff re-file suit against Remaining Defendants, the

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LLP

HAMPTONHOLLEY

2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

11 efforts that Remaining Defendants have made in this action will be relevant and
12 useful in any subsequent action. Remaining Defendants will be able to use the
13 discovery they have conducted and any trial preparations they have made.
14 Accordingly, an award of attorneys’ fees and costs is not appropriate, and should not
15 be a condition of dismissal.
16 IV.

CONCLUSION

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The Court should allow Plaintiff to voluntarily dismiss the Remaining

18 Defendants without prejudice, and without paying attorneys’ fees or costs.
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20 Dated: April 6, 2012
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Dean A. Dickie (appearing Pro Hac Vice)
Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
MILLER, CANFIELD, PADDOCK AND STONE,
P.L.C.
George L. Hampton IV (State Bar No. 144433)
Colin C. Holley (State Bar No. 191999)
HAMPTONHOLLEY LLP

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By: /s/ Dean A. Dickie
Dean A. Dickie

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Attorneys for Plaintiff
BRYAN PRINGLE

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4813-1652-0975 - v. 1

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CERTIFICATE OF SERVICE
On April 6, 2012, I electronically filed the foregoing MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF BRYAN
PRINGLE'S MOTION FOR VOLUNTARY DISMISSAL OF CERTAIN PARTIES
WITHOUT PREJUDICE AND WITHOUT FEES OR COSTS using the CM/ECF
system which will send notification of such filing to the following registered
CM/ECF Users:

8 Barry I. Slotnick
9 Donald A. Miller
Tal Efriam Dickstein
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Linda M. Burrow
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[e-mail]
[e-mail], [e-mail]
[e-mail]
[e-mail], [e-mail],
[e-mail],
[e-mail]
Ryan Christopher Williams [e-mail]
Kara E. F. Cenar
[e-mail]
Robert C. Levels
[e-mail]
Kathleen E. Koppenhoefer [e-mail]
Rachel Aleeza Rappaport [e-mail]
Jonathan S. Pink
[e-mail],
[e-mail]
Dean A. Dickie
[e-mail], [e-mail],
[e-mail],
[e-mail],
[e-mail]
Edwin F. McPherson
[e-mail],
[e-mail]
Joseph G. Vernon
[e-mail]
James W. McConkey
[e-mail]
Justin Michael Righettini [e-mail],
[e-mail]
Tracy B. Rane
[e-mail]
Thomas D. Nolan
[e-mail]

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I am unaware of any attorneys of record in this action who are not registered

2 for the CM/ECF system or who did not consent to electronic service.
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I certify under penalty of perjury under the laws of the United States of

4 America that the foregoing statements are true and correct.
5 Dated: April 6, 2012
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/s/Colin C. Holley
George L. Hampton IV (State Bar No. 144433)
Colin C. Holley (State Bar No. 191999)
HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
Corona del Mar, California 92625
Telephone: [phone]
Facsimile: 949.718.4580

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ND: 4833-3883-8536, v. 1