Disney Enterprises, Inc. et al v. Hotfile Corp. et al

Filing 309

MOTION WARNER'S MOTION AND MEMORANDUM OF LAW TO CONVERT REPORT AND RECOMMENDATION INTO AN ORDER by Warner Bros. Entertainment Inc.. (Attachments: # 1 Text of Proposed Order Granting Warner's Motion to Convert Report and Recommendation Into An Order and Ordering Hotfile Corp. to Produce the Full Titov Ex.27)(Stetson, Karen)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMS/TURNOFF

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,
Plaintiffs,
v.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.
/
HOTFILE CORP.,
Counterclaimant,
v.
WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.
/
WARNER’S MOTION AND MEMORANDUM OF LAW TO CONVERT
REPORT AND RECOMMENDATION INTO AN ORDER
Warner Bros. Entertainment Inc. (“Warner”) respectfully moves to convert the
Honorable William C. Turnoff’s Report and Recommendation on Warner’s Motion to
Permit Use at Trial or Summary Judgment of Titov Ex. 27 in its Entirety, dated February
28, 2012 (the “Report”), into an Order. Warner requests this relief so as to have the
benefit of the ruling in time to obtain and incorporate the relevant document, Titov Ex.
27, into Warner’s Reply in Support of its Motion for Summary Judgment, which is
currently due to be filed in less than two weeks on March 12, 2012. To make meaningful

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use of the document (which Warner previously destroyed based on Hotfile’s clawback),
Warner must be able to obtain a copy from Hotfile in advance of Warner’s summary
judgment reply memorandum. Absent converting the Report into an Order, therefore,
Warner will thus be unable to obtain a copy of the full document, or make use of it, until
after in summary judgment briefing has concluded, and the relief recommended by the
Report will effectively be mooted by the case schedule.
Because Warner’s original motion goes to a nondispositive issue and was referred
to the Magistrate Judge by the Court for appropriate disposition, Warner believes that
under 28 U.S.C. § 636 and the rules of this Court, its motion can and should be resolved
by an Order and that the Report and Recommendation procedure is not necessary here.
See February 8, 2012 Order of Referral (Docket No. 248); 28 U.S.C. § 636(b)(1)(A); S.D.
Fla. Magistrate L.R. 1(c). In addition, since Hotfile can file Objections to the Magistrate
Judge’s decision irrespective of whether that decision is styled as an “Order” or as a
“Report and Recommendation” – and can, if it so chooses, raise a contingent evidentiary
objection to Warner’s use of the full Titov Ex. 27 in its summary judgment briefing
pending the Court’s resolution of any such Objection – converting the Report into an
Order would not prejudice Hotfile’s rights in any way. Therefore, Warner respectfully
requests that the Court convert the Report into an order.

Dated: February 29, 2012

Respectfully submitted,
By: _/s/ Karen L. Stetson__
Karen L. Stetson
GRAY-ROBINSON, P.A.
1221 Brickell Avenue
16th Floor
Miami, Fl 33131
Telephone: [phone]
Facsimile: [phone]

MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403
Phone: [phone]

JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001

Fax: [phone]

Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiffs and the MPAA

CERTIFICATE OF GOOD FAITH CONFERENCE
I HEREBY CERTIFY that, pursuant to Local Rule 7.1(a)(3), U.S. District Court for the
Southern District of Florida, counsel for Plaintiffs have conferred with counsel for Defendant
Hotfile Corp. in a good faith effort to resolve the issues raised in this Motion without court
action, and have been unable to reach agreement.

Dated: February 29, 2012

By: _/s/ Karen L. Stetson__
Karen L. Stetson
GRAY-ROBINSON, P.A.
1221 Brickell Avenue
16th Floor
Miami, Fl 33131
Telephone: [phone]
Facsimile: [phone]

MOTION PICTURE ASSOCIATION
OF AMERICA, INC.
Karen R. Thorland (Pro Hac Vice)
15301 Ventura Blvd.
Building E
Sherman Oaks, CA 91403
Phone: [phone]
Fax: [phone]

JENNER & BLOCK LLP
Steven B. Fabrizio (Pro Hac Vice)
Duane C. Pozza (Pro Hac Vice)
Luke C. Platzer (Pro Hac Vice)
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs and the MPAA

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20427-WILLIAMS/TURNOFF

DISNEY ENTERPRISES, INC.,
TWENTIETH CENTURY FOX FILM CORPORATION,
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP,
COLUMBIA PICTURES INDUSTRIES, INC., and
WARNER BROS. ENTERTAINMENT INC.,
Plaintiffs,
v.
HOTFILE CORP., ANTON TITOV, and
DOES 1-10.
Defendants.
/
HOTFILE CORP.,
Counterclaimant,
v.
WARNER BROS. ENTERTAINMENT INC.,
Counterdefendant.
/
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on this 29th day of February, 2012, I served the following document on
all counsel of record on the attached service list via the Court’s ECF System:
Warner’s Motion and Memorandum of Law to Convert Report and
Recommendation into an Order
I further certify that I am admitted to the United States Court for the Southern District of Florida
and certify that this Certificate of Service was executed on this date.
By: /s/ Karen L. Stetson
Karen L. Stetson
5
65469.1

SERVICE LIST
Disney Enterprises, Inc., et al. v. Hotfile Corp. et al.
CASE NO. 11-CIV-20427-WILLIAMS-TURNOFF

RASCO KLOCK
Janet T. Munn
[e-mail]
283 Catalonia Ave., Suite 200
Coral Gables, FL 33134
Phone: [phone]
Fax: [phone]

FARELLA BRAUN + MARTEL LLP
Anthony P. Schoenberg
[e-mail]
Roderick M. Thompson
[e-mail]
N. Andrew Leibnitz
[e-mail]
Deepak Gupta
[e-mail]
Janel Thamkul
[e-mail]
235 Montgomery Street
San Francisco, CA 94104
Phone: [phone]

Attorney for Defendants Hotfile Corp. and
Anton Titov

Attorneys for Defendants Hotfile Corp. and
Anton Titov

BOSTON LAW GROUP, PC
Valentin Gurvits
[e-mail]
825 Beacon Street, Suite 20
Newton Centre, MA 02459
Phone: [phone]
Attorneys for Defendants Hotfile Corp. and
Anton Titov

6
65469.1