Mediostream Inc. v. Priddis Music Inc. et al

Filing 15

Mediostream Inc. v. Priddis Music Inc. et al

Doc. 15

Case 3:07-cv-02127-PJH

Document 15

Filed 08/10/2007

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Mitchell Silberberg & Knupp LLP 1487702.1

MARC E. MAYER (SBN 190969), [e-mail] MITCHELL SILBERBERG & KNUPP LLP 11377 West Olympic Boulevard Los Angeles, California 90064-1683 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Warner/Chappell Music, Inc. Word Music, LLC, Dayspring Music, LLC, Wordspring Music, LLC, Unichappell Music, Inc., Chappell & Co., Inc., Cotillion Music, Inc., Rightsong Music, Inc., Walden Music, Inc., Warner/Tamerlane Publishing Corp., and WB Music Corp.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA MEDIOSTREAM, INC., Plaint iff, v. PRIDDIS MUSIC, INC. AND WARNER/CHAPPELL MUSIC, INC., et al., Defendants. CASE NO. C 07 2127 PJH AMENDED NOTICE OF MOTION OF THE WARNER PUBLISHERS TO DISMISS AMENDED COMPLAINT OR, ALTERNATIVELY, TO TRANSFER OR STAY THE ACTION [Fed. R. Civ. P. 12(b)(3); 28 U.S.C. § 1404] Hon. Phyllis J. Hamilton Date: September 26, 2007 Time: 9:00 a.m. Ctrm: 3, 17th Floor TO ALL PARTIES AND THEIR COUNSEL OF RECORD HEREIN:

PLEASE TAKE NOTICE that, on September 26, 2007, in the courtroom of The Honorable Phyllis J. Hamilton of the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, California, 94102, at 9:00 a.m. or as soon thereafter as the matter may be heard, Defendants Warner/Chappell Music, Inc., Word Music, LLC, Dayspring Music, LLC, Wordspring Music, LLC, Unichappell Music, Inc., Chappell & Co., Inc., Cotillion Music, Inc., Rightsong Music, Inc., Walden Music, Inc., Warner/Tamerlane Publishing Corp., and WB Music Corp. (the "Warner Publishers") shall, and hereby do, move the 1 CASE NO. C 07 2127 PJH AMENDED NOTICE OF MOTION TO DISMISS AMENDED COMPLAINT
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Court pursuant to Federal Rule of Civil Procedure 12(b)(3), 28 U.S.C. § 1404, and the Court's inherent authority, to dismiss this action, or alternatively to transfer the action to the United States District Court for the Middle District of Tennessee or to stay the action pending the resolution of a related, parallel act ion in the Middle District of Tennessee, Word Music LLC et. al. v. Priddis Music, Inc. et. al., Case No. 3:07-0502 (M.D. Tenn.) (the "Nashville Act ion"), which was filed on May 8, 2007.

This Motion is made on the following grounds:

(1)

This action is subject to dismissal or transfer in deference to the parallel Nashville

Act ion. In the Nashville Action, the Warner Publishers (with the exception of Warner/Chappell Music, Inc., which does not own any of the copyrights at issue) have asserted claims for copyright infringement against Mediostream, Inc. and others, including co-defendant Priddis Music, Inc. ("Priddis") and various related companies. In this action, Mediostream seeks merely a declaration of non-infringement of the Warner Publishers' copyrights. Thus, it is the mirror image of the Nashville Action, but this action does not contain all of the parties to or claims asserted in the Nashville Act ion. Proceedings in Tennessee have proceeded much further than proceedings in this Court. Considerat ions of efficiency, equity, and wise judicial administration mandate dismissal.

(2)

The surrounding facts, including the timing of the filing of this action and the

course of dealings between the parties, lead to the inescapable conclusion that this action was filed in a "race to the courthouse" and in an effort to preempt the Warner Publishers' parallel affirmative lawsuit. Further, this action was filed after Mediostream deliberately, and in bad faith, purported to engage the Warner Publishers in discussions concerning its acceptance of a Waiver of Service ­ knowing that such discussions would delay the filing of the Warner Publishers' lawsuit while it prepared and filed its own anticipatory complaint for "Declaratory Judgment."

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( 3)

Alternat ively, this action should be transferred to the United States District Court

for the Middle District of Tennessee, pursuant to 28 U.S.C. § 1404 in the interests of justice and for the convenience of the parties. In light of the fact that Mediostream has appeared in the Nashville Act ion and that the case is proceeding apace in Middle District of Tennessee, interests in judicial economy and efficiency, as well as in avoiding inconsistent rulings, mandate that this action be heard by that Court. Additionally, none of the "private" or "public" "convenience" factors justify upsetting the Warner Publishers' choice of forum as a copyright plaintiff. To the contrary, all o f these considerations support transfer of this action to the Middle District of Tennessee, to be consolidated with the Nashville Action.

( 4)

At a minimum, in the event the Court elects not to dismiss or transfer this action,

the Court, in the exercise of its discretion, should stay this action pending the resolution of the Nashville Act ion. Such a stay would further interests of judicial economy and efficiency and is necessary to avoid the risk of inconsistent district court (and/or appellate court) rulings. See Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995).

This motion is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the accompanying Declarations of Paul Harrison Stacey and Kelly Isenberg, all pleadings and papers on file in this action, any facts of which the Court may take judicial notice, and any oral argument that the Court may entertain.

This Amended Notice of Motion is being filed in order to reschedule the previously noticed hearing date of September 19, 2007, to the new date of September 26, 2007 (one week later). Following the filing of Defendants' prior Notice of Motion, Defendants were informed by the Court Clerk that the Court will not be hearing any motions on September 19, 2007. Accordingly, Defendants have amended the hearing date to September 26, 2007.

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DATED: August 9, 2007

MARC E. MAYER MITCHELL SILBERBERG & KNUPP LLP

By: /s/ Marc E. Mayer Marc E. Mayer Attorneys for Defendants

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