Bryan Pringle v. William Adams Jr et al

Filing 273

REPLY in support of Plaintiff's Motion for Voluntary Dismissal of Certain Parties Without Prejudice and Without Fees or Costs, filed by Plaintiff Bryan Pringle. (Attachments: # 1 Declaration of Kathleen E. Koppenhoefer in Further Support of Motion)(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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17 BRYAN PRINGLE, an individual,
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Plaintiff,
v.

20 WILLIAM ADAMS, JR.; STACY
FERGUSON; ALLAN PINEDA; and
21 JAIME GOMEZ, all individually and
collectively as the music group The
22 Black Eyed Peas, et al.,
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Defendants.

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Case No. SACV 10-1656 JST(RZx)
REPLY IN FURTHER SUPPORT
OF PLAINTIFF BRYAN
PRINGLE'S MOTION FOR
VOLUNTARY DISMISSAL OF
CERTAIN PARTIES WITHOUT
PREJUDICE AND WITHOUT
FEES OR COSTS
DATE:
TIME:
CTRM:

May 14, 2012
10:00 a.m.
10A

1 I.

INTRODUCTION

2

After the Court granted summary judgment to the Guetta Defendants1 and

3 requested that the parties submit a status on the remaining defendants, Plaintiff
4 suggested to the Adams Defendants2 that they should seek to join the motion, and
5 that Plaintiff would not oppose such a joinder. In response, the Adams Defendants
6 made clear that they had no intention of seeking to join in the Motion for Summary
7 Judgment: “we have not asked to file a joinder (late or otherwise).” See, Exhibit
8 A to Declaration of Kathleen Koppenhoefer (hereafter “Koppenhoefer Decl.”). We
9 also know, of course, that the Adams Defendants deliberately chose not to make their

LLP

HAMPTONHOLLEY

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

10 own Motion for Summary Judgment, and deliberately chose not to join the Guetta
11 Defendants motion in November 2011. The Adams Defendants now complain that
12 they will be prejudiced unless the Court denies Plaintiff’s Motion for Voluntary
13 Dismissal and instead sua sponte enters summary judgment in their favor so they can
14 get what they presume to be an automatic award of attorneys’ fees. That the Adams
15 Defendants were given three distinct chances to obtain summary judgment and
16 deliberately rejected each opportunity undermines any credible claim of prejudice.
17 As such, the Court should grant Plaintiff’s motion without prejudice and without an
18 award of costs and fees.
19 II.

BACKGROUND

20

On November 17, 2011, the Guetta Defendants moved for summary judgment.

21 (Dckt. No. 160). The Adams Defendants and Interscope Defendants did not join in
22 the motion. On April 3, 2012, the Court entered summary judgment on behalf of the
23 Guetta Defendants, and entered an order directing the parties to submit a joint status
24 report as to the remaining, non-moving defendants. (Dckt. Nos. 252, 256). On April
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1

Plaintiff adopts and incorporates by reference the defined terms from the
26 Response in Opposition to Plaintiff’s Motion for Voluntary Dismissal.
2
Although the arguments set forth here are directed to the Adams Defendants
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specifically, they apply to the joinder filed by the Interescope Defendants (Dckt. No.
28 272) as well.
-1-

1 4, 2012, counsel for the Adams Defendants asked Plaintiff to voluntarily agree to
2 entry of summary judgment against him. See, Koppenhoefer Decl., Exhibit A.
3 Instead, Plaintiff suggested that the remaining defendants seek to join the Motion for
4 Summary Judgment, and further indicated that Plaintiff would not oppose the
5 request. See, Koppenhoefer Decl., Exhibit B. In response, the Adams Defendants
6 made it clear that they had no intention of joining the granted motion for summary
7 judgment: “we have not asked to file a joinder (late or otherwise).” See,
8 Koppenhoefer Decl., Exhibit C. Defendants now insist that Plaintiff’s Motion should
9 be granted as (1) untimely and (2) prejudicial because they should be awarded
10 summary judgment even though they chose not to seek summary judgment and
11 refused to join in the Guetta Defendants’ motion.
12 III.

ARGUMENT

13

The Ninth Circuit has consistently held that a “district court should grant a

14 motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that
15 it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972,
16 975 (9th Cir. 2001) (citing Waller v. Fin. Corp. of America, 828 F.2d 579, 583 (9th
17 Cir. 1987)); Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145-46 (9th
18 Cir. 1982). In this context, legal prejudice means “prejudice to some legal interest,
19 some legal claim, some legal argument.” Smith, 263 F.3d at 975 (internal citations
20 omitted); Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996).
21 Prejudice is not established by showing that Defendants face the threat of a second
22 lawsuit, or a tactical disadvantage. U.S. v. Berg, 190 F.R.D. 539, 543 (E.D. Cal.
23 1999).
24

Courts have identified several factors to consider in determining legal

25 prejudice:
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(1)

The defendant’s effort and expense involved in preparing for trial;

27

(2)

Excessive delay and lack of diligence on the part of the plaintiff in

28 prosecuting the action;

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(3)

Insufficient explanation of the need to take a dismissal; and

2

(4)

The fact that summary judgment has been filed by the defendant.

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Id. (emphasis added) (granting the government’s motion for voluntary

4 dismissal in an action to enforce tax liens against a real property owner, in part
5 because the owner had not filed a motion for summary judgment).
6

None of these factors alone is sufficient to support a denial of a motion for

7 voluntary dismissal. “[P]lain legal prejudice does not result merely because
8 defendant will be inconvenienced by having to defend in another forum.” Burnette v.
9 Godshall, 828 F.Supp. 1439, 1443 (N.D. Cal. 1993) (citing Hamilton, 679 F.2d at
10 145). Nor does prejudice result “when the dismissal may cause defendant to incur
11 substantial expense in preparing for trial.” Burnette, 828 F. Supp. at 1443 (citing
12 Durham v. Florida East Coast Railway Co., 385 F.2d 366, 368) (5th Cir. 1967). A
13 court may grant a Rule 41(a)(2) motion even where a plaintiff would gain a tactical
14 advantage from the voluntary dismissal. Id. (citing Hamilton, 679 F.2d at 145); see
15 also Hepp v. Conoco, Inc., 97 Fed. Appx. 124, 125 (9th Cir. 2004) (finding that
16 defendant’s loss of its ability to have the opinions of plaintiff’s experts excluded by a
17 motion in limine, and thus the loss of its ability to have summary judgment granted
18 in its favor, “is based on the loss of an opportunity to raise a legal argument, not an
19 injury to an actual legal right.”).
20

Additionally, other circuits have held that a mere attempt to avoid an adverse

21 summary judgment ruling, without more, does not constitute plain legal prejudice.
22 Pontenberg v. Boston Scientific Corp., 252 F.3d 1253, 1258 (11th Cir. 2001);
23 McCants v. Ford Motor Co., Inc. 781 F.2d 855, 857 (11th Cir. 1986).
24

Courts in this Circuit and other jurisdictions have found that a defendant’s

25 motion for summary judgment filed after a motion for voluntary dismissal weighs
26 strongly against granting summary judgment or denying voluntary dismissal. See
27 Westlands, 100 F.3d at 98 (reversing district court decision to deny Rule 41(a)(2)
28 motion for voluntary dismissal and grant defendant’s subsequently filed motion for

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1 summary judgment); see also Conafay by Conafay v. Wyeth Laboratories, 841 F.2d
2 417, 419-420 (D.C. Cir. 1988) (finding that the “equities” were not with the
3 defendant-appellee, where the appellee filed for summary judgment while a motion
4 for voluntary dismissal was pending). There is no direct case on point where a
5 defendant requests entry of summary judgment in lieu of granting a Rule 41(a)(2)
6 motion to dismiss where the defendant never sought summary judgment or failed to
7 join in the summary judgment motion despite multiple opportunities to do so.
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A.

Granting the Plaintiff’s Motion for Voluntary Dismissal is Proper
Given Defendants’ Own Deliberate Refusal to Seek or Join in the
Motion for Summary Judgment.

The existence of a summary judgment motion filed after a motion to dismiss

12 pursuant to Rule 41(a)(2) is not sufficient reason to deny a motion to dismiss.
13 Conafay, 841 F.2d at 419-420 (“Granting voluntary dismissal would mean that
14 appellee would lose an opportunity for a favorable final disposition of the case, but
15 that is not important as long as appellee suffers no legal prejudice from dismissal.”).
16 In Conafay, the D.C. Court of Appeals noted that the district court placed great
17 emphasis on the fact that the defendant-appellee submitted a motion for summary
18 judgment with its memorandum in opposition of the appellant’s motion to dismiss.
19 Id. at 419. Not only did the Court of Appeals find this fact irrelevant to the issue of
20 the motion for voluntary dismissal, but the court stated that the equities were not with
21 the defendant-appellee. Id. at 419-420. Instead of easily declining to oppose the
22 motion to dismiss the appellee and saving its energy for the next round of litigation,
23 the appellee “took a large risk” by filing its subsequent motion for summary
24 judgment, which could easily be renewed in the reinstituted action. Id.
In Westlands Water Dist, the U.S. Court of Appeals for the Ninth Circuit relied
25
26 on the holding in Conafay to reverse and remand the district court’s denial of the
27 plaintiff-appellant’s motion to voluntary dismiss. Westlands, 100 F.3d at 98. There,
28 the court “suggested” that on remand the district court consider the fact that the

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1 defendant waited to file a motion for summary judgment until after the filing of the
2 motion for voluntary dismissal. The court stated that “the district court also may wish
3 to delete any award of costs and fees attributable to the defendants' summary
4 judgment motions, if the court concludes those costs and fees might have been
5 avoided if the defendants had waited to file their summary judgment motions and
6 responded initially to the Districts' motion for voluntary dismissal.” Id. at 97-98.
7 Thus, not only did the court find that the defendant would not be prejudiced by
8 voluntary dismissal, but that the subsequent filing of the motion for summary
9 judgment was not necessarily entitled to attorney fees. Conafay and Westlands Water
10 District both provide insight into the proper analysis of a Rule 41(a)(2) motion. A
11 motion for summary judgment filed after a motion for voluntary dismissal should be
12 afforded less weight during voluntary dismissal analysis.
13

In Piedmont Resolution, L.L.C. v. Johnston, Rivlin & Foley, the court

14 addressed this issue in the context of multiple defendants and multiple motions for
15 summary judgment. Piedmont Resolution, 178 F.R.D. 328. There, the plaintiff filed
16 its motion for voluntary dismissal two days after the court granted partial summary
17 judgment to one of several defendants. Id. at 330. The remaining defendants filed
18 motions for summary judgment shortly thereafter. Id. The remaining defendants
19 opposed the motion for voluntary dismissal on the grounds that their motions for
20 summary judgment were pending. The Court dismissed this argument, finding
21 voluntary dismissal did not prejudice defendants who subsequently filed
22 dispositive motions. Id. at 331.
23

Even if the Court rejects the argument that the subsequent consideration of

24 summary judgment under Rule 56(f) should be given less weight than the previously
25 filed motion for voluntary dismissal, a basic factor for considering legal prejudice in
26 Rule 41(a)(2) analysis is no longer present. The fact that the opposing defendant has
27 filed a motion for summary judgment is one factor a court will consider in its Rule
28 41(a)(2) analysis. Berg, 190 F.R.D. at 543. Here, however, the Adams Defendants to

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1 date have never filed any motion for summary judgment, and refused to join in the
2 Guetta Defendants’ Motion, even after Plaintiff invited them to do.
3

Defendants suggest that Plaintiff’s Motion is moot because the Court entered

4 summary judgment for other defendants. In support of this argument, Defendants cite
5 Steward v. New Chrysler, 415 Fed. Appx. 632, 637-38 (6th Cir. 2011) and Vega v.
6 Wiley, 2008 WL 4371876 at *5 (D. Colo. Sept. 22, 2008).3 In both of those cases, the
7 defendants filed a motion for summary judgment before the plaintiffs filed their
8 motions for voluntary dismissal under Rule 41(a)(2).
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B.

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Defendants Will Suffer No Legitimate Prejudice By Entry of
Voluntary Dismissal.

11

Defendants suggest that they will be prejudiced by voluntary dismissal but

12 have identified no supporting facts that establish actual prejudice. Really, the Adams
13 Defendants mean that they will suffer a tactical disadvantage unless they are
14 rewarded with summary judgment despite their choice not to seek it. There is no
15 legitimate or actual plain legal prejudice that will result from their voluntary
16 dismissal without prejudice and without fees and as such, the Court should grant the
17 motion.
18

1.

19
20

There is No Prejudice Due to the Timing of the Motion or
Expenses Incurred by the Defendants in Litigating the Case.

First, the Adams Defendants argue that Plaintiff’s Motion is untimely, and that

21 they were forced to incur costs in litigating the matter. Like many of Defendants’
22 arguments, this is a red herring. Plaintiff’s request for voluntary dismissal is not
23 untimely. Plaintiff’s request was made in direct response to the Court’s directive that
24 the parties deal with the remaining defendants in light of the Adams Defendants’
25
26

3

Defendants also cite a number of cases in which the court denied the
27 defendant’s motion for involuntary dismissal under Rule 41(b) as moot after granting
the same defendant’s motion for summary judgment. Those cases bear no relevance
28 to the present case.

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1 strategic choice not to seek summary judgment.

The only option the Adams

2 Defendants presented was for Plaintiff to volunteer to take a judgment against
3 himself, a procedure that Plaintiff reasonably declined to do in light of its potential
4 adverse impact on Plaintiff’s appellate rights. Id. Further, if timeliness should weigh
5 against any party, it should be the Adams Defendants who, even after summary
6 judgment was granted, refused to join in the Motion for Summary Judgment but who
7 now insist that the only just outcome is for summary judgment to be granted in their
8 favor.
9

The Adams Defendants argue that the Court should deny Plaintiff’s Motion for

10 Voluntary Dismissal and instead enter summary judgment on their behalf because
11 they have been forced to incur expenses to litigate the claim. This does not constitute
12 prejudice, however, and is not grounds to deny Plaintiff’s motion. In re
13 Lowenschuss, 67 F.3d 1394, 1400–1401 (9th Cir. 1995). Any expenses incurred in
14 trial preparation and discovery could be applied should the case be re-filed.
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2.

Defendants Are Not Automatically Entitled to Attorneys’ Fees
and Their Complaint That They Cannot Seek them Is Not
Plain Legal Prejudice.

Defendants argue that they will be prejudiced if summary judgment is not

19 entered in their favor because they will lose their ability to recover attorneys’ fees
20 under the Copyright Statute. Ignoring the waiver argument for a moment, if
21 defendants obtained summary judgment, there would be no automatic right to
22 attorneys’ fees as they suggest. There is not even a presumption of attorneys’ fees for
23 the prevailing party in a copyright infringement case; it is up to the sound discretion
24 of the trial court taking all circumstances into consideration. 17 U.S.C. § 505. An
25 award of fees should only be granted upon a finding of “frivolousness, motivation,
26 objective unreasonableness . . . and the particular need to advance compensation and
27 deterrence.” Fogerty v. Fantasy, 510 U.S. at 534 n.19. None of these factors exists
28 here. Plaintiff’s claim was not frivolous, as evidenced by the Court’s denial of the

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1 various motions to strike and dismiss. The claims for copyright infringement were
2 objectively reasonable and consistent with the Copyright Act’s purposes given the
3 factual evidence and expert opinions Plaintiff offered with respect to his creation of
4 the original and derivative versions of "Take a Dive” in 1999. See, Dckt No. 249-2,
5 Declaration of Kathleen E. Koppenhoefer in Opposition to Rule 11 Sanctions.
6 Although the Adams Defendants have admittedly been successful in their efforts at
7 painting a skewed and inaccurate portrait of Plaintiff, the fact remains that he has
8 offered credible proof of creation of his song in 1999 that is identical to the song they
9 released more than a decade later. As such, there is no guarantee that Defendants
10 would even obtain an award of attorneys’ fees. If Defendants felt as strongly as they
11 do about the merits of their claim relative to the Plaintiff, they should have moved
12 for summary judgment in November 2011. Or sought joinder at that time. Or made
13 an unopposed motion for joinder in April as Plaintiff proposed. Every litigation
14 decision involves risk. They took a gamble in deciding not to move for summary
15 judgment for strategic reasons. That gamble is not a reason to deny Plaintiff’s well
16 founded Motion for Voluntary Dismissal.
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19

C.

The Adams Defendants Are Engaging In Prejudicial
Gamesmanship.

Finally, even if the Court were to accept Defendants’ argument that Plaintiff’s

20 Rule 41(a)(2) motion is nothing more than a ploy to avoid an adverse summary
21 judgment ruling, it is the behavior of the remaining Defendants that has had the
22 effect of delaying Plaintiff’s ability to appeal this courts previously-granted summary
23 judgment. See James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1070 (9th Cir. 2002)
24 (finding that partial summary judgment and dismissal of remaining claims without
25 prejudice created a final, appealable judgment); see also Romoland School Dist. v.
26 Inland Empire Energy Center, LLC, 548 F.3d 738, 748 (9th Cir. 2008) (citing
27 Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995)); Missouri ex rel. Nixon v.
28 Coeur D’Alene Tribe, 164 F.3d 1102, 1105-1106 (8th Cir. 1999) (summary judgment

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1 as to several defendants became final and appealable when the other defendants were
2 voluntarily dismissed from the lawsuit). Here, where Plaintiff validly seeks to appeal
3 the Court’s granting of summary judgment as to the Guetta Defendants, the non4 moving Defendants gamesmanship and delay in joining to the Guetta Defendants’
5 summary judgment motion or filing a timely motion for summary judgment on their
6 own stands in the way of Plaintiff pressing on toward appeal.
7 IV.

CONCLUSION

8

The Adams Defendants made a tactical, strategic choice to let the Guetta

9 Defendants move for summary judgment while they sat back and did nothing.
10 Having made that election, they cannot now claim that their choice not to seek or
11 join in summary judgment means that they will be prejudiced if the Court grants
12 Plaintiff’s motion for voluntary dismissal without prejudice and without an award of
13 fees. Because they have failed to make a showing of any legitimate or real prejudice,
14 their request that summary judgment be entered, or else dismissal be with prejudice
15 and with an award of full attorneys’ fees, should be denied.
16
17

Dated: April 30, 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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22

By:
/s/ Dean A. Dickie
Attorneys for Plaintiff Bryan Pringle

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CERTIFICATE OF SERVICE
On April 30, 2012, I electronically filed the foregoing REPLY IN FURTHER
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:

7 Barry I. Slotnick
8 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]

1

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.
3

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 30, 2012
6

/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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