Graham-Sult et al v. Clainos et al
Filing
318
ORDER DENYING PLAINTIFFS MOTION TO ALTER OR AMEND THE JUDGMENT re 296 MOTION for Leave to File. Signed by Judge Claudia Wilken on 1/27/16. (jebS, COURT STAFF) (Filed on 1/27/2016)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ALEXANDER GRAHAM-SULT and DAVID
GRAHAM,
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Plaintiffs,
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v.
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United States District Court
For the Northern District of California
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NICHOLAS P. CLAINOS, RICHARD L.
GREENE, LINDA McCALL, GREENE
RADOVSKY MALONEY SHARE & HENNIGH
LLP, BILL GRAHAM ARCHIVES LLC,
d/b/a WOLFGANG’S VAULT, NORTON
LLC and WILLIAM E. SAGAN,
ORDER DENYING
PLAINTIFFS’ MOTION
TO ALTER OR AMEND
THE JUDGMENT
(Docket No. 296)
Defendants.
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No. C 10-4877 CW
________________________________/
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On October 6, 2015, the Court granted Defendant Nicholas P.
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Clainos’s and Defendants Bill Graham Archives LLC, Norton LLC and
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William E. Sagan’s (collectively, BGA Defendants) motions for
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summary judgment.
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Graham-Sult and David Graham’s claims in Defendants’ favor and
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judgment entered.
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amend the judgment pursuant to Federal Rule of Civil Procedure
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59(e).
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oppositions to the motion and Plaintiffs have filed a reply.
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Having considered the parties’ papers and the record in this case,
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the Court DENIES Plaintiffs’ motion.
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The order resolved all of Plaintiffs Alexander
Plaintiffs have now filed a motion to alter or
Defendant Clainos and BGA Defendants have filed
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LEGAL STANDARD
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Federal Rule of Civil Procedure 59(e) provides that a party
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may file a motion to alter or amend a judgment within twenty-eight
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days after entry of judgment.
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motion to amend or alter are not listed in the rule, the district
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court enjoys considerable discretion in granting or denying the
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motion.”
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1999) (en banc) (per curiam) (internal quotation marks omitted).
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However, amending a judgment after its entry remains “an
United States District Court
For the Northern District of California
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“Since specific grounds for a
McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir.
extraordinary remedy which should be used sparingly.”
(internal quotation marks omitted).
Id.
Absent “highly unusual
circumstances,” a motion for reconsideration should not be granted
“unless the district court is presented with newly discovered
evidence, committed clear error, or if there is an intervening
change in the controlling law.”
Kona Enterprises, Inc. v. Estate
of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation
marks and citations omitted).
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DISCUSSION
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Plaintiffs argue that they are entitled to reconsideration
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based on newly discovered evidence, an intervening change in law,
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and factual errors in the Court’s order on summary judgment.
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I.
Newly Discovered Evidence
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The purported newly discovered evidence consists primarily of
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deposition testimony from Randy Tuten and David Singer, artists
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who created artwork for posters used to market concerts for BGE.
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However, these witnesses provided declarations in support of
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Plaintiffs’ opposition to Defendant Clainos’s motion for summary
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judgment.
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introduce evidence that could have been, but was not, submitted in
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support of briefing on a motion for summary judgment.
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Dist. No. 1J Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263
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(9th Cir. 1993).
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the testimony could not have been included in the declarations
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filed in support of their opposition to Defendant Clainos’s motion
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for summary judgment.
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United States District Court
For the Northern District of California
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A motion for reconsideration may not be used to
See School
Plaintiffs do not explain why the information in
Moreover, the testimony does not provide a basis for
revisiting the Court’s judgment.
Neither deponent provided any
evidence that Bill Graham was acting in his personal capacity when
he hired artists to create poster artwork.
Indeed, Mr. Tuten
testified that he was paid by checks issued by “Bill Graham
Presents.”1
II.
Intervening Change in Law
Plaintiffs next argue that the Court should reconsider its
judgment in favor of Defendants based on a recent order by a court
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Plaintiffs also argue that certain poster copyrights were
registered by Jerry Pompili to “The Fillmore Corporation,” a
company owned by Bill Graham. Plaintiffs argue that this
demonstrates that Mr. Pompili knew how to register posters to a
corporate entity if he intended the copyright to belong to that
entity rather than to Bill Graham personally. As an initial
matter, Plaintiffs do not explain why they did not present this
evidence in their briefing or supplemental briefing on summary
judgment. The Court also notes that Mr. Pompili was deposed prior
to the briefing on Defendant Clainos’s motion for summary judgment
and the deposition excerpts presented to the Court do not discuss
the copyrights registered to “The Fillmore Corporation.” The mere
fact that some copyrights were registered to a corporate entity
does not establish that the copyrights that were registered to
Bill Graham were owned by him individually, rather than as a
representative of one of his companies.
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in the Central District of California in Marya v. Warner/Chappell
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Music, Inc., 2015 WL 5568497 (C.D. Cal.).
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reconsideration, Plaintiffs must present “an intervening change in
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the controlling law.”
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Plaintiffs concede that the district court order they cite is not
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controlling law.
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proposition that BGA Defendants must prove that Bill Graham
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transferred the copyrights he personally owned to his company or
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companies.
United States District Court
For the Northern District of California
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However, to seek
Kona Enterprises, 229 F.3d at 890.
Moreover, Plaintiffs rely on Marya for the
However, this position relies on Plaintiffs’
assumption that the copyrights were first owned by Bill Graham
personally, rather than as a representative of his company or
companies.
The Court has already rejected that assumption.
III. Factual Errors
Finally, Plaintiffs argue that the Court made factual errors
regarding the poster copyrights at issue in this case.
Specifically, Plaintiffs argue that the Court erroneously adopted
Defendants’ statement that 174 poster copyrights are at issue in
this case.
figure.
Plaintiffs identify two potential errors in this
First, the figure is based on Defendants’ contention that
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the only copyrights at issue in this case are those that were
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identified in the 1995 assignment.
Plaintiffs argue that their
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claims concern every copyright registered in Bill Graham’s name at
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the time of his death.
However, at the hearing on the motions for
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summary judgment, Plaintiffs’ only theory of damages with respect
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to the poster copyright was based on the assignment.
See Docket
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No. 274, Transcript at 13:24-16:22; see also Transcript at 73:1027
15 (discussing the assignment in relation to claims against BGA
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Defendants based on copyrights).
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in limiting Plaintiffs’ claims to the copyrights identified in the
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assignment.
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Accordingly, there was no error
Plaintiffs also assert that the copy of the assignment
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attached to a declaration filed in support of Mr. Clainos’s motion
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for summary judgment was incomplete.
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Declaration, Ex. 51.
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assignment, which lists many more copyrights, was attached as an
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exhibit to their complaint.
United States District Court
For the Northern District of California
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See Docket No. 224, Sims
Plaintiffs state that the complete
However, Plaintiffs themselves cited
Mr. Clainos’s version of the assignment.
See Docket No. 232,
Plaintiffs’ Opposition to BGA Defendants’ MSJ at 11:9-10; Docket
No. 240, Plaintiffs’ Opposition to Clainos’s MSJ at 17:15-16.
Accordingly, the Court relied on that version.
That Plaintiffs
attached a different version to their complaint in 2010 makes no
difference.
It is the parties’ responsibility to cite to the
materials in the record they wish the Court to consider.
See
Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417–18 (9th
Cir. 1988) (“The district court is not required to comb the record
to find some reason to deny a motion for summary judgment.”).
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Even if the Court were to consider more copyrights than the
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174 copyrights identified as disputed by Defendant Clainos, its
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findings would still stand.
Defendant Clainos presented
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significant evidence to support a finding that the posters were
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works-for-hire commissioned by Bill Graham as a representative of
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his companies, not as an individual, and Plaintiffs failed to
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present adequate evidence that the posters were commissioned by
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Bill Graham as an individual to create a triable question of fact.
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Plaintiffs also attempt to raise arguments in their motion
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for reconsideration that they could have but failed to raise in
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their oppositions to the motions for summary judgment.
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example, Plaintiffs argue that some of the copyrights listed in
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the attachment to the assignment were registered to Bill Graham
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within five years of the creation of the artwork.
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Plaintiffs argue that those copyrights presumptively belonged to
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Bill Graham.
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presented sufficient evidence to rebut any presumption that the
United States District Court
For the Northern District of California
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For
Accordingly,
However, the Court previously found that Defendants
facts stated in the copyrights were valid.
See Docket No. 286 at
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Plaintiffs also argue for the first time that the assignment
was intended to affect all copyrights registered in Bill Graham’s
name, not only those listed on the attachment to the assignment.
Although the assignment states that it transfers “any and all
copyrights, tradenames, trademarks and servicemarks claimed by or
registered in the name” of Bill Graham, Plaintiffs never raised
this argument in their briefs or at the hearing on the motions for
summary judgment.
As noted above, the Court need not search the
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record for evidence to support Plaintiffs’ case.
Nor need it
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raise arguments that the parties fail to make.
See, e.g., Guatay
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Christian Fellowship v. County of San Diego, 670 F.3d 957, 987
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(9th Cir. 2011) (“[J]udges are not like pigs, hunting for truffles
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buried in briefs.”) (internal quotation marks and citations
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omitted).
Moreover, Plaintiffs do not explain why the assignment
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would include a list of some, but not all, of the relevant
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copyrights if it was intended to affect all copyrights.
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Finally,
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as discussed above, even if the Court were to consider every
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copyright registered in Bill Graham’s name at the time of his
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death, Plaintiffs have still failed to produce sufficient evidence
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to support a finding that Bill Graham commissioned the copyrighted
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artwork as an individual rather than as a representative of one or
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more of his companies.
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United States District Court
For the Northern District of California
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CONCLUSION
For the reasons stated above, Plaintiffs’ motion to alter or
amend the judgment is DENIED.
Docket No. 296.
IT IS SO ORDERED.
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Dated: January 27, 2016
CLAUDIA WILKEN
United States District Judge
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