Rude Music Inc v. Newt 2012, Inc. et al

Filing 43

RESPONSE by Newt Gingrich, Newt 2012, Inc.in Opposition to MOTION by Plaintiff Rude Music Inc to supplement its Motion to Strike Affirmative Defenses 41 (Braun, Karl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
RUDE MUSIC, INC.
Plaintiff,
v.
NEWT 2012, INC., NEWT GINGRICH, and
AMERICAN CONSERVATIVE UNION
Defendants.

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NO.: 1:12-cv-00640
JURY DEMAND
Judge Kennelly

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RESPONSE OF DEFENDANTS NEWT 2012, INC. AND NEWT GINGRICH IN
OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT ITS
MOTION TO STRIKE AFFIRMATIVE DEFENSES

COME NOW, Defendants Newt 2012, Inc. (“Newt 2012”) and Newt Gingrich (“Mr.
Gingrich”) (collectively, the “Defendants”), by and through their undersigned counsel and hereby
submit their Response in Opposition to Plaintiff’s Motion for Leave to Supplement Its Motion to
Strike Affirmative Defenses as follows:
This action was originally filed by the Plaintiff on January 30, 2012. Counsel for the
Defendants entered a Notice of Appearance on February 2, 2012 and contemporaneously filed an
Agreed Motion to Enlarge Time to Answer and/or Otherwise Plead which this Court granted on
February 7, 2012. This Court held its initial status hearing and Defendants filed their Answer on
March 5, 2012. At the initial status hearing, Defendants expressed concern over the lack of
specificity in the Complaint and requested additional information from the Plaintiff regarding
Plaintiff’s allegations. It was agreed at the initial status hearing that Plaintiff would provide
additional information to better assist Defendants’ understanding of the claims against them and

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assist their investigation of same. On March 7, 2012, a mere two days following the initial status
hearing and Defendants’ filing of their Answer, Plaintiff filed its Motion to Strike Affirmative
Defenses. Plaintiff had provided no additional information regarding the claims prior to filing the
Motion to Strike nor had Plaintiff contacted Defendants in any manner to discuss Defendants’
Affirmative Defenses. The parties appeared before the Court on March 13 to discuss the Plaintiff’s
Motion to Strike. Prior to the hearing, Plaintiff advised that a DVD was being provided with
additional videos purportedly depicting appearances by Mr. Gingrich during which the subject
composition, “Eye of the Tiger,” was performed without appropriate authorization. The Court
discussed the Plaintiff’s Motion to Strike with the parties and ordered that an Amended Answer be
filed on March 27, 2012. Defendants filed an Amended Answer on March 27, 2012 in spite of
having very little, if any, additional meaningful information with which to understand, evaluate and
respond to the claims asserted against them by the Plaintiff. Contrary to Plaintiff’s assertion,
Defendants did not “disregard the opportunity” to act in good faith and comply with this Court’s
guidance in amending their Answer. Two days later, again without making any attempt to
communicate with Defendants in advance, Plaintiff filed the present Motion for Leave to
Supplement Its Motion to Strike Affirmative Defenses on March 29, 2012.
As can be discerned by Defendants at this juncture, Plaintiff has alleged unauthorized public
performance by Defendants of “Eye of the Tiger” at four (4) vaguely described campaign events: (1)
“…in Doylestown, Pennsylvania, Mr. Gingrich entered the packed Moose Lodge for a speech as the
song ‘pulsed…;’ (2) …the copyrighted song played as Mr. Gingrich made his entrance and exit at an
event in Des Moines…; (3) …heralded his arrival at an event in Burlington, Iowa…; (4) …and
blared as his campaign bus rolled into an excavation business in Walford, Iowa.” (See, Complaint ¶
12). This constitutes the entire “notice” provided by Plaintiff regarding the allegations against these
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Defendants. Performance rights licenses are granted by the performing rights organizations
(“PROs” or “PRO”), ASCAP, BMI and SESAC for public performances such as those vaguely
described without dates and/or times in Plaintiff’s Complaint. ASCAP, with which Plaintiff is
affiliated, offers a “campaign license” for public performance uses associated with political
campaigns including public performances at campaign events and on campaign websites. Plaintiff
evidently conducted no investigation into whether any PRO licenses existed for the four (4) events
depicted in the Complaint. Venue and sponsor information associated with the events would be
necessary to investigate and make this determination. As such, venues and sponsors potentially
responsible for securing PRO licenses are indispensable parties to this action. Plaintiff fails to
address this aspect of Defendants’ Third Affirmative Defense in its supplemental demand that the
Affirmative Defense be stricken.
Plaintiff prematurely seeks to strike Defendants’ Affirmative Defenses that Plaintiff’s claims
may be time barred either by the Statute of Limitations and/or the Doctrine of Laches. These
Affirmative Defenses are waived under the Federal Rules if not raised in the Defendants’ initial
responsive pleading. In addition to alleging very little information in general, Plaintiff fails to
provide any specific dates associated with the four (4) events underlying the allegations against these
Defendants. It would be fundamentally unfair and contrary to the Federal Rules to strike these
Affirmative Defenses prior to any opportunity to conduct meaningful discovery.
Likewise, Plaintiff seeks to strike Defendants’ Ninth Affirmative Defense that a “…coowner/co-author of the alleged copyright authorized, licensed, or consented to it expressly, by
implication, or by conduct…” There is only one co-author of the composition, Jim Peterik. Mr.
Peterik has been vocal in the media, most notably during a personal appearance on February 1, 2012
in Chicago, that he is “not on board” with the present lawsuit. In fact, Mr. Peterik cited the potential
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existence of PRO license(s) which would authorize the subject performances and stated that he had
no knowledge of this lawsuit prior to its filing. Mr. Peterik heralded “Eye of the Tiger” as a
“motivational” song which he felt was appropriate for use in motivating people into action like
voting and to “shake ‘em out of their doldrums.” Mr. Peterik further stated that, “my publisher is
not joining into it at this time…” because “…as long as the venues have a blanket ASCAP or BMI
license

they’re

under

the

law...”

(See,

web

link:

http://www.myfoxchicago.com/dpp/news/metro/survivor-frank-sullivan-jim-peterik-lawsuit-newtgingrich-eye-of-the-tiger-song-disagree-20120201). Evidently the Plaintiff did not investigate this
aspect of its allegations and further investigation/discovery is necessary. The existence of these
underlying facts and circumstances, and the potential existence of additional facts and
circumstances, highlight the necessity for discovery prior to any final determination regarding
Defendants’ Affirmative Defenses.
Plaintiff seeks specificity from these Defendants beyond that required by the rules of
pleading, and yet Plaintiff’s Complaint is virtually devoid of detail regarding the specific allegations
against these Defendants. Defendants asserted in their Answer and Amended Answer that Plaintiff’s
allegations “…lack specificity as to which conferences, which public events, and where and when
these events allegedly took place…” (See, Answer and Amended Answer ¶ 10). In an effort to
conserve judicial resources and efficiently move the present case to resolution, Defendants refrained
from filing a Motion for More Definite Statement and attempted to work cooperatively with Plaintiff
to discern the exact nature of the claims against them. Paragraph 12 of Plaintiff’s Complaint is the
only portion of Plaintiff’s Complaint which broadly references alleged wrongful actions by these
Defendants. Plaintiff generally alleges that Defendants have “…caused a recording of ‘Eye of the
Tiger’ to be publicly performed at numerous campaign appearances by Mr. Gingrich…” Plaintiff
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then generally describes only four (4) “events” without providing dates, and with very little other
detail, as “examples” of the allegedly “numerous” public performances of the subject composition.
The DVD provided by Plaintiff following the March 13 hearing offers little more in the way of
discernible detail and/or fair notice of the claims asserted. The DVD contains videos of events
sponsored either by the co-Defendant, American Conservative Union (“ACU”), or by
organization(s) other than these Defendants. It is difficult to determine where one of the videos
depicting an appearance by Mr. Gingrich was taken and at what event it was associated.
Very simply, Plaintiff’s supplemental motion to strike is premature. Plaintiff is attempting to
litigate this matter through pre-discovery motions which are not yet ripe. Plaintiff also now seeks
fees for hastily filed motions that do nothing to advance the merits of this action and serve only to
delay resolution of this matter. Defendants made a good faith effort, following the March 13
hearing, to abide by this Court’s reasoned guidance and reduced their Affirmative Defenses from
eighteen (18) in number to thirteen (13). This is not a circumstance in which Defendants are
randomly advancing any as yet unsupported defenses. Contrary to Plaintiff’s assertion in its
proposed Supplement to its Motion to Strike Affirmative Defenses, these Defendants have not
“abandoned” any defenses but merely amended their Answer to re-assert appropriate defenses
according to this Court’s direction. Defendants respectfully would suggest to this Court that some
measure of discovery be allowed before further Court intervention is required with regard to
Defendants’ defenses, affirmative or otherwise. Defendants aver that their Answer and Amended
Answer comply with the pleading requirements set forth in the case precedent relied upon by
Plaintiff in its initial Motion to Strike Affirmative Defenses.
Plaintiff’s demand that Defendants continue to plead additional facts in support of their
defenses begs the similar requirement of Plaintiff to plead additional facts in support of its claims.
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Plaintiff’s arguments underscore the need for a more definite statement of its claims. Plaintiff seeks
to strike Defendants’ Third Affirmative Defense (as amended) citing only one of the factual bases
offered by Defendants in their amendment. The Complaint joins the ACU as a party Defendant but
cites other political events potentially sponsored by entities not joined in this action. This too forms
the basis for Defendants’ Third Affirmative Defense. In short, the parties should engage in at least
limited discovery before Plaintiff’s demands for more factual detail are ripe for determination. At
this juncture, however, Defendants simply do not have a sufficient factual basis to engage in any
further amendment of their Affirmative Defenses.
CONCLUSION
Defendants respectfully request that this Court reserve any further judgment regarding
their Affirmative Defenses until Defendants have been afforded a reasonable opportunity to
conduct discovery pursuant to the provisions of the Federal Rules. Plaintiff filed the present
Motion for Leave to Supplement its Motion barely twenty-four (24) hours after serving its Initial
Disclosures and forty-eight (48) hours after Defendants filed their Amended Answer. The issues
raised by Plaintiff herein are premature, do not advance the merits of the action at this juncture,
and serve only to delay a reasonable opportunity for discovery. If, after a reasonable opportunity
for discovery, a party determines that grounds do not exist for a certain defense or defenses, the
issue can be addressed appropriately at that time. However, Defendants respectfully request that
they be allowed the opportunity to discover more adequately the facts and circumstances
allegedly supporting the Plaintiff’s claims against them. As set forth above, further discovery is
needed to “flesh out” the “bare bones” allegations regarding the four (4) events at which Plaintiff
avers the unauthorized public performance of “Eye of the Tiger” by these Defendants.
Defendants respectfully request the opportunity for discovery before any further action is taken
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and/or required with regard to their Affirmative Defenses. Defendants also request that
Plaintiff’s demand for fees associated with its hastily filed pre-discovery Motion for Leave to
Supplement its Motion to Strike Affirmative Defenses be denied.
Respectfully submitted,
HALL, BOOTH, SMITH & SLOVER, PC
By: /s/ Karl M. Braun
Karl M. Braun, Esq. (TN BPR# 022371)
Admitted Pro Hac Vice
Byron K. Lindberg, Esq. (TN BPR 019822)
Admitted Pro Hac Vice
611 Commerce Street, Suite 2925
Nashville, TN 37203
[phone]
[phone]
By: /s/ Brian A. Rosenblatt___________________
SmithAmundsen LLC (IL ARDC# 6243772)
150 North Michigan Avenue, Suite 3300
Chicago, Illinois 60601
[phone]
[phone] (Fax)
ATTORNEYS FOR DEFENDANTS,
NEWT 2012, INC. and NEWT GINGRICH

CERTIFICATE OF SERVICE
I hereby certify that on April 3rd, 2012, I electronically filed the foregoing with the Clerk of
the Court using the CM/ECF system which will send notification of such filing to all CM/ECF
participants, and I hereby certify that I have mailed by United States Postal Service the document to
any non CM/ECF participants.
/s/ Brian A. Rosenblatt______________________

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