The Authors Guild, Inc. et al v. Hathitrust et al
Filing
31
FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - MOTION to Substitute Party. Old Party: New Party: STIPULATION AND ORDER TO SUBSTIUTE PARTIES. Document filed by Hathitrust.(Petersen, Joseph) Modified on 12/19/2011 (ldi).
KILPATRICK TOWNSEPO) & STOCKTON LLP
Joseph Peteraen (JP 9071)
Robert N. Potter (RP 5757)
31 West 52nd Stiieet
14th Floor
New York, New Yoric 10019
Telephone: (212) 775-8700
Facsimile: (212)775-8800
Joseph M . Beck (admitted pro hac vice)
Alex Fonoroff (admitted pro hac vice)
Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
UOO Peachtree Street
Suite 2800
Atlanta, Georgia 30309-4530
Telephone: (404) 815-6500
Facsimile: (404)815-6555
Attomeys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., et al.
Plaintiffs,
11 CIV 6351 (HB)(JLC)
STIPULATION
HATHITRUST, era/.
Defendants.
WHEREAS, on or about October 6, 2011, plaintiffs filed an Amended Complaint
(the "Amended Complaint") in the above-captioned action (the "Action") naming, among other
defendants, Julia Donovan Darlow, Laurence B. Deitch, Denise Hitch, Olivia P. Maynard,
Andrea Fischer Newman, Andrew C. Richner, S. Martin Taylor and Katherine E. White
(collectively, the "Michigan Regents"), Richard C. Blum, David Crane, William De La Pena,
Russell Gould, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica
Lozano, Hadi Makaiwhian, Geoi^e M , Marcus, Alfredo Miieles, Jr., Norman J. Pattiz, Bonnie
Reiss, Fred Ruiz, Leslie Tang Schilling, Bruce D. Vamer, Paul Wachter and Charlene Zettel
(collectively, the "Califomia Regents"), Jeffrey Bartell, Mark J. Bradley, Judith V. Grain, John
Drew, Tony Evers, Michael J. Falbo, Edmund Manydee^, Katherine Pointer, Charles Pruitt,
Troy Sherven, Brent Smith, Michael J, Specter, S. Mark Tyle, Jose F, Vasquez and David G.
Walsh (collectively, the "Wisconsin Regents"), William R. Cast, Patrick A. Shoulders,
Maryellen Kiley Bishop, Bruce Cole. Philip N . Eskew, Jr., Cora J. Griffin, Thomas E. Reilly, Jr.,
Derica W. Rice and William H. Strong (collectively, the "Indiana Trustees") (all of the foregoing
named individu^s, collectively, the "Individual Defendants");
WHEREAS, the defendants in the Action (including the Individual Defendants)
served their answer on December 2,2011 (the "Answer").
WHEREAS, the defend^ts warrant and represent that "HathiTrust" is the name
of a service of the University of Michigan in which tiie Universities and other institutions
participate under a^eements witii U M (the "Hathitrust Service"); and
WHEREAS, in lieu of engaging motion practice on tiie issue of whether the
Individual Defendants are sufficientiy involved in the alleged activities set forth in the Amended
Complaint to support jurisdiction under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L. Ed.
714 (1908) and its progeny, plaintiffs and defendants have agreed to substitute certain otfier
individuals in the place and stead of the Individual Defendants in the Action.
NOW THEREFORE, I T IS HEREBY STIPULATED AND AGREED, by
and between plaintiffs and defendmits, as follows:
1.
The Individual Defendants are hereby dismissed from the Action with
prejudice.
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US20M 3047004.1
2.
Mary Sm Coleman, President, The University of Michigan, is hereby
substituted as a named defendsuat in flie Action in the place and stead of the Michigan Regents.
3.
Marie G. Yudof, President, The University of California, is hereby
substituted as a named defendant in flie Action in the place and stead of the California Regents,
4.
Kevin Reilly, Presidwit, The University of Wisconsin System, is hereby
substituted as a named defendant in the Action in the place and stead of the Wisconsin Regents.
5.
Michael McRobbie, President, Indiana University, is hereby substituted as
a named defendant in the Action in the place and stead of the Indiana Trustees.
6.
In view of the substitutions set forth above, the individuals substituted in
the place and stead of the Individual Defendants (the "Substituted Defendants") agree not to
challenge the Amended Complaint on the grounds that the Substituted Defendants are not
sufficiently involved in the alleged activities set forth m the Amended Complaint to support
jurisdiction under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L. Ed. 714 (1908) and its
progeny. Each Substituted Defendant represents tiiat he or she has the autiiority and control
necessary to cause his or her respective university to comply with the terms of an injunction or
other court order witii respect to the alleged activities set forth in the Amended Complaint in tiie
event tiie Court orders such relief
Further, Mary Sue Coleman represents that she has the
authority and control necessary to cause the Hathitrust Service to comply with the terms of an
injunction or other court order with respect to the alleged activities set forth in the Amended
Complaint in the event the Court orders such relief
7.
Nothing in tiiis Stipulation shall impair any defenses not expressly
addressed herein including, without limitation, all defenses under the 11th Amendment of the
United States Constihition (for example, and solely for illusti^ive purposes, the Substituted
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US2008 3047004.1
Defendants reserve their right of qualified immunity under the discretionary fimctions doctrine
and reserve the right to argue that dleged infiingement of copyrights does not constitute a
violation of federal law for purposes of Ex Parte Young).
8.
The caption in the Amended Complaint is deemed amended to reflect the
substitution of the Substituted Defendants in the place and stead of the Individual Defendants. It
as agreed among Hxe parties fliat the operative complaint in the Action is the Amended
Complaint and that the operative answer is the Amwer and that the parties shall not be obligated
to, nor shall they, serve an amended complaint or answer reflecting the dismissal of the
Individual Defendants and/or the substitution of the Substitxtted Defendants.
Dated: New York, New Yoric
December iV,20n
FRANKFURT KURNIT KLEIN &
KILPATWCK TOWNSENa&
Edward H. Rosenthal {ER-8022)
Jeremy S. Goldman (JG-7402)
488 Madison Avenue
New York, NY 10022
(212) 980-0120
31 West 52"*' Street, 14 Floor
New York, New York 10019
(212) 775-8700
Attorneys for Defendants
Attomeys for Plaintiffs
SO ORDERED:
Hon. Harold Baer, Jr. U.S.D.J.
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US200! 3047004.1
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