David Grisman Et Al v. UMG Recordings Inc Et Al - Document No. 60

David Grisman et al v. UMG Recordings Inc et al Doc.
60
Case 2:07-cv-02921-VBF-MAN Document 60 Filed 02/04/2008 Page 1 of 16
1 SCOTT A. EDELMAN (SBN 116927)

BRENDA L. KLEIDOSty (SBN 234987)
2 GIBSON, DUN & CRUTCHER LLP
2029 Century Park East
3 Los Angeles, California 90067-3026
Telephone: (310) 552-8500
4 Facsimile: (310) 552-7041
5 CYNTHIA S. ARA TO (SBN 156856)

GIBSON, DUN & CRUTCHER LLP
6 200 Park Avenue
New York, New York 10166-0193
7 Telephone: (212) 351-4000
Facsimile: (212) 351-4035
8
Attorneys for Defendant
9 WARNER MUSIC GROUP CORP.
10
UNITED STATES DISTRICT COURT
11
CENTRAL DISTRICT OF CALIFORNIA
12
13
DAVID GRISMAN and CRAIG CASE NO. CV 07 2921 (VBF) (MAN)
14 MILLER, individually and collectively,
and doing business as DA WG MUSIC, DEFENDANT WARNER MUSIC
15 GROUP'S OPPOSITION TO
and on behalf of all those similarly
16 situated, PLAINTIFFS' MOTION FOR LEAVE
TO FILE SECOND AMENDED
17
Plaintiffs, COMPLAINT
18
v. Assigned to the Honorable Valerie Baker
19 Fairbank, Courtoom 9
WARNER MUSIC GROUP CORP.;
20
APPLE COMPUTER, INC.; Action filed: May 3, 2007
21 MICROSOFT CORPORATION; AOL Trial date: Not set
22
MUSIC NOW, LLC; YAHOO!, INC.;
NAPSTER, LLC; REALNETWORKS
23 DIGITAL MUSIC OF CALIFORNIA
24 INC.; BUY.COM, INC.; and DOES ONE
through TEN, inclusive,
25
Defendants.
26
27
28
DEFENDANT WARNER MUSIC GROUP'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT
Dockets.Justia.com
2 Page
1 TABLE OF CONTENTS
3 INTRODUCTION.................................................................................................... ...... 1
4 STATEMENT OF FACTS............................................................................................ 2
5 ARGUMENT................................................................................................................. 3
6 1. The Appropriate Standard of Review..................................................................... ...... 3
7 n. By
Joinder Is Improper Because Plaintiffs Have Not Alleged A Right To Relief
Or Against Each Plaintiff Or Defendant Arsing Out Of The Same Transaction

8 or Occurence.................................. .......... ..... ........................................ ................ ...... 5
9 A. The Parties and Claims At Issue Do Not Overlap............................................ 5
10 B. Plaintiffs' Claims Do Not Arse Out Of The Same Transaction Or
Occurrence....................................................................................................... 7
11
m. Joinder Is Improper Because Plaintiffs Have Not Alleged A Common Issue of
12 Fact.......................................................................................................................... ..... 9
13 IV. Plaintiffs' Motion Should Be Denied Because Permitting Joinder In This Case
Would Not Serve the Policies Underlying Rule 20(a) ...............................................10
14
CONCLUSION............................................................................................................ 12
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I
DEFENDANT WARER MUSIC GROUP'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT
1 TABLE OF AUTHORITIES
2 Page( s)
3 Cases
4 Bri~ÕrF.ít15~~~91D: T'e~~2t'Ötj~:............ ............................................... ..............7, 8
5 Caton v. Barry,
500 F. Supp. 45 (D.D.C. 1980)......... ...... ........ ................................... ........ ..... .......4, 9
6
Chavez v. Illinois State Police,
7 251 F.3d 612 (7th Cir. 2001) .....................................................................................5
COï~~~.3ci ~3~8(9th Cir. 1997) ............................................................................. 5, 10
8
9 DCg fíf~da183 rJtii cG:ef~io/)~:............................ ................................ ........ ...............3
10 Desert Empire Bank v. Insurance Co. of North America,

623 F.1d 1371 (9th Cir. 1980).........................................................................3,4, 11
11
DlRECTV v. Loussaert,
12 218 F .R.D. 639 (S.D. Iowa 2003 )......... ............... ..... ............... ....... ......... ......... ......... 8
Hinson v. Norwest Financial South Carolina, Inc.,
13 239 F.3d 611 (4th Cir. 2001 ......................................................................................4
14 Hulex Music v. c.F. Maint. & Prop. Mgmt., Inc.,
115 F.R.D. 303 (D. Neb. 1987) .................................................................................8
15 Pena v. McArthur,
889 F. Supp. 403 (E.D. CaL. 1994) ........................................................................6,9
16
Phi~~Ò Ø.~~b. lX.l1(b~Dlí: 2bf4)~~~~..~~~~::... ...... .... ..... ........................................ .......8
17
RaPll~~s~~p~t2de48 fPtrf~.'f' 1~98)................ .......... ..... ........ ................ ................ .......8
18
19 SAES Getters S.p.A. v. Aeronex, Inc.

219 F. Supp. 2d 1081 (S.D. CaL. 2002) .....................................................................3
20 Smith v. N Am. Rockwell Corp.,
50 F.R.D. 515 (N.D. Okla. 1970) ............................................................................10
21
Smith v. Planned Parenthood of St. Louis Region,
22 225 F .R.D. 233 (E.D. Mo. 2004).... ................... ........... ............... ..................... ......... 8
Trail RealN-, Inc., v. Beckett
23 462 F.2d 396 (lOth Cir. î972) ...................................................................................6
24 Vulgq'F ~R rtl(S~ß~Ñ.r f979)~. ~'..~~~~ .~~~.:. .~r-:~~. .~r-~~~~.~~~~~~:................... 6
25 Rules
26 Fed. R. Civ. P. 15............................................................ ................................................3
27 Fed. R. Civ. P. 15( a) ....................................................................................................... 4
Fed. R. Civ. P. 20 ......................................................................................3, 4, 6, 7, 9, 11
28
Fed. R. Civ. P. 20( a) ........................................... ......................................1, 4, 5, 6, 8, 11
11
AMENDED COMPLAINT
TABLE OF AUTHORITIES
2
(Continued)
3
Page( s)
4
Fed. R. Civ. P. 20( a)( 1 )-(2)............................................................................................. 4
5
Treatises
6
7 Federal Practice and Procedure § 1652 (3d ed. 2001) ..............................................5
7
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
111
AMENDED COMPLAINT
1 Defendant Warner Music Group Corp. ("Warner") respectfully submits this
2 opposition to Plaintiffs' Motion for Leave to File a Second Amended Complaint.

3 INTRODUCTION
4 This Court should deny Plaintiffs' motion for leave to file their proposed Second
5 Amended Complaint on the grounds that Plaintiffs seek to join separate and distinct
6 claims and parties that are not properly joined under Rule 20(a) of the Federal Rules
7 of Civil Procedure. The prior pleadings in this action all asserted copyrght
8 infringement claims against an overlapping group of digital music providers and
9 record companies alleged to have exploited certain plaintiffs' copyrghted musical

10 compositions without consent. In the new proposed pleading, one plaintiff, David
11 Grisman, seeks to replace his copyright claim with a claim for breach of contract to be
12 asserted against two defendants only, and another plaintiff, Rodney Franklin, seeks to
13 bring separate and independent copyright infrngement claims against entirely
14 different defendants. There is no overlap between Grisman's proposed breach of
15 contract and Franklin's copyright claims: they involve diferent plaintiffs alleging
16 diferent legal theories against diferent defendants. At bottom, the pleading
17 artificially combines two different lawsuits that have no business being prosecuted
18 together and that never would have been combined but for the fact that Grisman has
19 abandoned his infringement claims and seeks to replace them with a distinct breach of
20 contract action. Plaintiffs' separate and distinct claims cannot be properly joined
21 under Rule 20(a) of the Federal Rules of Civil Procedure. Accordingly, Plaintiffs'
22 motion for leave to amend should be denied to the extent it seeks to join Grisman's
1
23 breach of contract claim with Franklin's copyright claim.
24
25
1 Warner does not object to the proposed Second Amended Complaint to the extent
26 it seeks to substitute Rodney FranKlin as a copyrght plaintiff. Nor does Warner
object to the filing by Plaintiff Grisman of a separate complaint alleging Grisman's
27 breach of contract claim. Warner merely objects to the filing of a Second
Amended Complaint that improperly joins two distinct sets of claims and parties.
28
1
DEFENDANT WARER MUSIC GROUP'S OPPOSITON TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT
1 STATEMENT OF FACTS
2 This action commenced on May 3,2007, with the filing of an initial Complaint
3 brought by Plaintiffs David Grisman, Craig Miller and The Music Force, LLC,
4 alleging various claims of copyrght infrngement against recording companies
5 Warner and SONY BMG MUSIC ENTERTAINMENT and a group of digital music
6 providers (the "Digital Music Providers") with respect to various musical
7 compositions that Plaintiffs allegedly owned and controlled. (Docket at 1)
8 A First Amended Complaint was filed on or about May 10,2007, which
9 continued to assert copyright infrngement claims only, albeit on behalf of a somewhat
10 different group of plaintiffs (Grisman and Craig Miller); against a somewhat different
11 group of defendants (Warner, Universal Music Group and the Digital Music
12 Providers); and concerning different musical compositions. (Docket at 5)
13 Plaintiffs subsequently sought to file a Second Amended Complaint. In its
14 current form, Plaintiffs' proposed Second Amended Complaint alleges two different
15 causes of action, each of which is brought by a different plaintiff against a different set
16 of defendants.2
17 First, Grisman seeks to bring a breach of contract claim against Warner and its
18 indirect subsidiary Rhino Entertainment Company ("Rhino"). Grisman alleges in this
19 claim that Warner and/or Rhino are parties to a wrtten or implied contract with
20 Grisman, pursuant to which recordings were sold containing a number of Grisman's
21 copyrighted musical compositions. (Second Am. CompL. ~ 16) Grisman further
22 alleges that, although Warner and/or Rhino paid him the publishing royalties due as a
23 result of their exploitation of his works, they failed to do so in a timely manner. (Id.
24 ~ 20) Accordingly, Grisman asserts a claim for breach of contract against Warner
25 and/or Rhino seeking to recover interest as a result of Warner and/or Rhino's alleged
26
2 In its initial iteration, this pleading embraced cOPYright plaintiffs and musical
27 compas~tions no longer part of the proposed pleading now before this Court. (PI. 's
Br. at 111 n.l).
28
2
AMENDED COMPLAINT
1 belated payments. (Id. ~ 20) Grisman brings this claim on behalf of

himself and
2 others, including copyright owners who allegedly have not been paid the royalties due
3 and owing them by Warner and/or Rhino.
4 Second, Rodney Franklin ("Franklin") seeks to bring various copyrght claims
5 (including for direct, contributory and vicarious infrngement) against Ryko
6 Corporation, Instinct Records, a number of the Digital Music Providers and certain
7 Does. (Id. ~~ 23,25 and 28) The copyrght infrngement claim alleges that these
8 defendants improperly exploited Franklin's musical composition (in physical or digital
9 form) without license authority. (Id.)
10 ARGUMENT
11 I. The Appropriate Standard of Review
12 The decision to grant or deny a motion for leave to amend is governed by the
13 distrct court's discretion. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th
14 Cir. 1987). In exercising its discretion, this Court should examine each case on its
15 facts and gauge the propriety of granting leave to amend accordingly. SAES Getters
16 S.p.A. v. Aeronex, Inc., 219 F. Supp. 2d 1081, 1086 (S.D. CaI. 2002). In particular,
17 amendment of the pleadings should not be permtted if the opposing part makes a
18 showing of bad faith, undue delay, prejudice to the opposing side and futility of
19 amendment. DCD Programs, 833 F.2d at 186.
20 Contrary to Plaintiffs' contention, this Court can and should deny a motion for
21 leave to amend if
Civil
the proposed pleading violates Rule 20 of the Federal Rules of
22 Procedure and seeks to join claims or parties that should not be joined. Indeed, the
23 Ninth Circuit has made clear in Desert Empire Bank v. Insurance Co. of North
24 America, 623 F.2d 1371 (9th Cir. 1980), that a motion to amend is governed by Rule
25 15 and Rule 20 of the Federal Rules. As the Ninth Circuit stated:
26 plaintifs petition to amend its pleadings to add Schulte as a party
27 defendant brings into consideration Rules 15 and 20 of
the Federal Rules
28 of Civil Procedure. . .. In conjunction with Rule 15, Rule 20 . . . allows

3
AMENDED COMPLAINT
1 the permssive joinder of parties. . .. We conclude that. . . the district

2 court correctly allowed his joinder pursuant to the provisions for
3 permssive joinder under Rule 20.

4 Id. at 1374 (emphasis added); see also Hinson v. Norwest Financial South Carolina,
5 Inc., 239 F.3d 611,618 (4th Cir. 2001) ("rA) court determning whether to grant a
6 motion to amend to join additional plaintiffs must consider both the general principles
7 of amendment provided by Rule 15 (a) and also the more specific joinder provisions of
8 Rule 20(a)."); Caton v. Barry, 500 F. Supp. 45, 54 (D.D.C. 1980) (denying motion for
9 leave to amend in connection with consideration of improper joinder).3

10 Rule 20(a) provides:
11 (l) Plaintiffs. Persons may join in one action as plaintiffs if:
12 (A) they assert any right to relief jointly, severally, or in the alternative
13 with respect to or arising out of the same transaction, occurrence, or
14 series of transactions or occurrences; and
15 (B) any question of law or fact common to all plaintiffs will arise in the
16 action.
17 (2) Defendants. Persons... may be joined in one action as defendants if:
18 (A) any right to relief is asserted against them jointly, severally, or in the
19 alternative with respect to or arising out of the same transaction,
20 occurrence, or series of transactions or occurrences; and
21 (B) any question of law or fact common to all defendants will arise in the
22 action.
23 Fed. R. Civ. P. 20(a)(1)-(2).
24
25
26 3 Notably, Plaintiffs cite no cases in which a court declined to consider Rule 20 in
connectlOn with a motion to amend. Rather, Plaintiffs cite solely to cases holding
27 that Rule 20 should not be used as grounds to dismiss (as opposed to sever) claims
alleged in an already operative complaint. (PI. 's Br. at 8-9)
28
4
AMENDED COMPLAINT
1 Rule 20(a) thus imposes two independent requirements before joinder is

2 allowed: (1) a right to reiiefmust be asserted by, or against, each plaintiff or
3 defendant relating to or arising out of the same transaction of occurrence; and
4 (2) some question of
law or fact common to all the parties must arise in the action.
5 Id.; Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997); Desert Empire Bank,
6 623 F.2d at 1375.
7 In addition, "Rule 20 is designed to promote judicial economy, and reduce

8 inconvenience, delay, and added expense." Coughlin, 130 F.3d at 1351. Accordingly,
9 this Court has discretion to deny joinder if it determnes that joinder will not foster the
10 objectives of the rule, but will result in "prejudice, expense, or delay." Chavez v.
11 Illinois State Police, 251 F.3d 612,632 (7th Cir. 2001) (citing 7 Charles Alan Wright,
12 Arhur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1652 (3d ed.
13 2001)).
14 Plaintiffs' proposed amended complaint - which seeks to combine two
15 different lawsuits into one - satisfies neither of the bedrock requirement of
16 Rule 20(a) and would not serve the purposes of this Rule. Accordingly, Plaintiffs'
17 motion to amend should be denied.
18 II. Joinder Is Improper Because Plaintiffs Have Not Alleged A Right To Relief
By Or Against Each Plaintiff Or Defendant Arising Out Of The Same
19 Transaction or Occurrence
20 Joinder is not proper in this case because Plaintiffs have not sufficiently alleged
21 a right to relief by, or against, each plaintiff or defendant relating to or arising out of
22 the same transaction or occurrence. Fed. R. Civ. P. 20(a). The claims asserted by the
23 two diferent plaintiffs have nothing in common and they are asserted against diferent
24 sets of defendants. It is axiomatic in such a setting that joinder is improper.
25 A. The Parties and Claims At Issue Do Not Overlap
26 Unlike the tyical joinder, there is no overlap whatsoever between the claims or
27 parties that Plaintiffs seek to join.

28
5
AMENDED COMPLAINT
1 For example, a tyical joinder claim involves one plaintiff (P 1) asserting claims
2 against one or more defendant(s) (Dl and D2), along with a second plaintiff (P2)
3 asserting identical or related claims against one or more of the same defendants (D 1
4
5 D1 :
6
7
IE//-~ D2
and D2). One example of this is illustrated as follows:
8
On the other hand, the instant case involves a claim brought by one plaintiff
9
10
(P 1) against one set of defendants (D 1) and a wholly independent claim brought by
another plaintiff (P2) against another set of defendants (D2). This case is ilustrated as
11
12
LB I D1 I
13
1E..................................................................1Æ
14 follows:
15 The lack of overlap here demonstrates that the Plaintiffs' proposed claims are not
16 properly joined. See, e.g, Pena v. McArthur, 889 F. Supp. 403, 406 (E.D. CaI. 1994)
17
("Rule 20 'does not contemplate joinder, where. . ., an existing attempt is made to
18 incorporate into an existing action a different action against different parties and
19 presenting entirely different factual and legal issues."') (quoting Trail Realty, Inc., v.
20 Beckett, 462 F.2d 396, 400 (lOth Cir. 1972)); Vulcan Soc'y of Westchester County v.
21 Fire Dep't of City of White Plains, 82 F.R.D. 379, 390 (S.D.N.Y. 1979) (Rule 20(a)
22 requires "that there be asserted a minimum of one claim against all the defendants. ").4
23
24
25
26 4 Not surprisingly, all of the cases cited by Plaintiffs in support of joinder of their
claims follow the traditional joinder paradigm discussed aoove. See Pl.'s Br. at 8-9.
27 None involve the situation her~1 where eacn Plaintiff has asserted a different claim
against different defendants. Ia.
28
6
AMENDED COMPLAINT
1 B. Plaintiffs' Claims Do Not Arise Out Of The Same Transaction Or

Occurrence
2
3 Plaintiffs' claims also do not arise out of the same transaction or occurrence.
4 Plaintiffs allege that their breach of contract and copyrght claims are "logically
5 related" because they concern certain of the Digital Music Providers' sales of digital
6 downloads of Plaintiffs' copyrighted works. (PI. 's Br. at 11 ) Yet the fact that
7 Plaintiffs' works were exploited digitally is of no significance: it is irrelevant to
8 Warner/Rhino's alleged contractual royalty payment obligations, which extend to
9 many different media, and to Franklin's infringement claims, which embrace both the
10 physical and digital exploitation of his works. Accordingly, Plaintiffs' alleged
11 "logical relation" is insufficient to constitute a common transaction or occurrence as

12 required by Rule 20(a).
13 In addition, each of Plaintiffs' claims concern different copyright works.
14 Grisman's breach of contract claim concerns nine musical compositions - Dawgola,
15 Janice, Dawg's Bull, 16/16, EMD, Blue Midnite, Dawg's Rag, Pneumonia, and
16 Ricochet, and Franklin's copyrght claim concerns an entirely different work, The
17 Groove. (Second Am. Cplt. ~~ 16, 22) This fact too requires that Plaintiffs' claims
18 not be joined. For example, numerous courts have found that infrngement claims
19 (much less an infringement claim coupled with a breach of contract claim) regarding
20 different copyrighted works do not share a common transaction or occurrence as
21 required under Rule 20. In Bridgeport Music, Inc. v. 11C Music, 202 F.R.D. 229 (D.
22 Tenn. 2001), a consortium of recording companies and music publishers brought suit
23 against a number of music publishers, recording labels, entertainment companies,
24 copyright clearance companies, and performng rights organizations alleging, inter
25 alia, copyright infringement as a result of defendants' "sampling" of music owned by
26 the plaintiffs. Id. at 231. The court found that the defendants were misjoined because
27 plaintiffs' claims did not arise out of the same transaction or occurrence - plaintiffs'
28 claims arose out of separate instances of" sampling." I d. at 233. As the court
7
DEFENDANT WARNER MUSIC GROUP'S OPPOSITON TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT
1 explained, "(t)he fact that certain Defendants were involved in the production,
2 publishing, and distribution of more than one allegedly offending song does not, in
3 itself, cause these songs to be related occurrences in the manner contemplated by Rule
4 20(a)." Id. at 232; see also Rappoport v. Steven Spielberg, Inc., 16 F. Supp. 2d 481,
5 496 (D.N.J. 1998) (severing a plaintiffs claims against defendants where plaintiff
6 alleged copyright infrngement in separate works in different media); see also Philips
7 Elecs. N Am. Corp. v. Contec Corp., 220 F.R.D. 415, 417 (D. DeI. 2004)
8 ("Allegations of (patent) infringement against two unrelated parties based on different
9 acts do not arise from the same transaction. ").
10 In addition, one court declined to join breach of contract and copyrght

11 infringement claims arising out of a defendant's alleged infrngement of a common set
12 of copyrghted works (much less the different works at issue here), on the ground that
13 the claims involved separate transactions and occurrences for joinder purposes. See
14 Hulex Music v. c.F. Maint. & Prop. Mgmt., Inc., 115 F.R.D. 303,304 (D. Neb. 1987)
15 (denying joinder of plaintiffs infrngement claim against defendant restaurant/club
16 owner with defendant's breach of contract claim against plaintiffs licensing agent).
17 Thus, courts have rejected the joinder of claims having a much closer nexus than the
18 attenuated one proffered by Plaintiffs here.
19 Because Plaintiffs have not sufficiently alleged a right to relief by, or against,
20 each plaintiff or defendant relating to or arising out of the same transaction or

21 occurrence, joinder of Plaintiffs' breach of contract and copyright infringement claims
22 would be improper under Rule 20(a) and Plaintiffs' motion to amend should be
23 denied.5
24
25 5 See also DlRECTVv. Loussaert, 218 F.R.D. 639,642 (S.D. Iowa 2003) ("Although
the same transaction or occurrence requirement of Rule 20 may be constred
26 liberallyl, this does not mean joinder is p-roper in the absence of a transactional
link."); i)mith v. Planned Parenthood ôfSt. Louis Region, 225 F.R.D. 233, 246
27
(E.D. Mo. 2004) ("(T)he mere fact that both plaintiffs became pregnant several
years apart and chose to go to defendant's facility for different reasons is not
28
(Footnote continued on next page)
8
AMENDED COMPLAINT
1 III. Joinder Is Improper Because Plaintiffs Have Not Alleged A Common Issue
of Fact
2
3 Plaintiffs' motion also should be denied because Plaintiffs' proposed claims
4 involve no common issue of fact. Plaintiffs contend that such a common issue exists
5 solely because Grisman's breach of contract and Franklin's copyright claims both
6 concern whether Plaintiffs' works were sold by the Digital Music Providers as digital
7 downloads. (PL.'s Br. at 13) While this may be tre in the most theoretical and
8 abstract sense, it is of no relevance here because the songs at issue in Grisman's breach
9 of contract claim are completely different than the song at issue in Franklin's copyrght
10 infringement claims. Thus, Grisman's claim concerns nine musical compositions
11 allegedly exploited by Warner and/or Rhino pursuant to licenses from Grisman, and
12 Franklin's claim concerns a different song allegedly exploited by certain of the Digital
13 Music Providers (but not Warner or Rhino) without license authority.6 (Second Am.
14 Cplt. ~~ 16,22) Thus, at best, each claim involves a separate question of
fact:
15 whether the songs at issue in that claim were sold by the Digital Music Providers as
16 digital downloads.7 And, as set forth above, Franklin's claims extend to the physical,
17
18 (F ootnote continued from previous page J

enough of a logical or factual connection to satisfy the same transaction or
19 occurrence requirement. ").
20 6 Similarly, Grisman pUTIorts to assert claims on behalf of a class of owners of
musical compositions licensed to Warner and/or Rhino, whereas Franklin asserts
21 claims on behalf of a class of owners of different musical compositions exploited
by different defendants. (Second Am. Cplt. ~~ 16, 22)
22
7 Even if the Court were to find that a common issue of fact exists as to whether
23 Plaintiffs' copyrighted works were sold by the Digital Music Providers as digital
downloads, joinder would still be improper. See, e.g., Caton, 500 F. Supp. at 54
24
(denying motions to add l-any plaintiffs and to amend the complaint when
proposeajoinder would' substantially alter the character and scope of the
25
i?roceedings" and when
discrete questions the only
of fact" claims of the proposed
"tangentially newtoplaintiffs
related" involved
the original proceeding);
26 Pena, 889 F. Supp. at 406 ("Althougli some similar factual issues may exist
between the claims, plaintiff is attempting to join different defendants in two
27 different actions presenting different factual and legal issues; Rule 20 does not
contemplate sucli a joinder. ").
28
9
AMENDED COMPLAINT
1 as well as digital, exploitation of his works. For this reason as well, joinder is
2 improper and Plaintiffs' motion to amend should be denied.
3 iv. Plaintiffs' Motion Should Be Denied Because Permitting Joinder In This
Case W ould Not Serve the Policies Underlying Rule 20t a)
4
5 Permtting joinder in this case would not serve the policies underlying Rule 20.
6 Plaintiffs implicitly concede that the legal issues are vastly different for the breach of
7 contract and copyright infrngement claims, including with respect to every one of
8 those claims' prima facie elements and defenses. Joining plaintiffs' claims will thus
9 not promote judicial economy because it would force this Court to consider in one
10 action a multitude of unrelated and different elements and defenses. See e.g.,
11 Coughlin, 130 F.3d at 1351 (finding that "the interests of justice are not served by
12 joinder of the Plaintiffs in this case" and that "tral efficiency will not be promoted"
13 because "(eJach claim raises potentially different issues, and must be viewed in a
14 separate and individual light by the Court"); Smith v. N Am. Rockwell Corp., 50
15 F.R.D. 515, 522 (N.D. Okla. 1970) (finding improper joinder where the determnation
16 of the facts, the scope of the testimony, and the defenses relating thereto, with respect
17 to each plaintiff bore little resemblance to the issues raised by the other plaintiffs).
18 Similarly, there will be no overlap in the discovery related to the breach of
19 contract and copyrght claims. The breach of contract claim is relatively
20 straightforward and wil require discovery regarding the identity of the contracting
21 parties (Warner or Rhino); the contract terms; the amount of money (here, interest)
22 allegedly owed; and various contract defenses.
23 The copyright claim is far more complex. It will require discovery of, among
24 other things, whether infringement occurred; whether certain defendants (other than
25 Warner or Rhino) induced, contributed to, or are vicariously responsible for other
26 defendants' alleged infringement; and whether defendants acted "willfully." In
27 addition, we expect that the Digital Music Providers will defend against the copyrght
28 infringement claims on the grounds that they relied on third parties to obtain the
10
AMENDED COMPLAINT
1 necessary licenses and thus discovery from these third parties will be necessary to
2 substantiate both the existence of such licenses and, potentially, an "innocent
3 infringer" defense. Plaintiffs also have conceded that indemnity issues regarding third
4 parties may be raised. (PL.'s Br. at 13) This third part discovery is wholly irrelevant
5 to Grisman's breach of contract claim. In fact, Warer anticipates that no third part
6 discovery will be necessary relating to Grisman's breach of contract claim. Finally,

7 the damages at issue in the copyright case are likely to be complex, requiring
8 discovery of defendants' profits as well as a variety of factors relevant to statutory
9 damages awards.
10 Joinder is also inappropriate in this case because it would violate principles of

11 fundamental fairness. See Desert Empire Bank, 623 F.2d at 1375 ("Although the
12 specific requirements of Rule 20 . . . may be satisfied, a tral court must also examine
13 the other relevant factors in a case in order to determne whether the permssive
14 joinder ofa part will comport with the principles of
fundamental fairness."); cf PI.'s
15 Br. at 1 0 (district court acts within its discretion in permtting joinder under Rule 20(a)
16 where "the fairest and most expeditious way to dispose of these claims was to tr them
17 together"). As discussed above, allowing Plaintiffs to amend their complaint to join
18 Grisman's breach of contract with Franklin's copyrght claim would unduly prejudice
19 Warner and Rhino by enmeshing them in more lengthy and complex copyright
20 infringement claims. In this case, the fairest and most expeditious way to dispose of
21 these completely separate and independent claims would be to litigate them separately.
22
23
24
25
26
27
28
11
AMENDED COMPLAINT
1
CONCLUSION
2
For the foregoing reasons, Warner Music Group Corp. respectfully requests that
3
this Court deny Plaintiffs' motion for leave to file a Second Amended Complaint to the
4
extent it seeks to join Grisman's breach of contract and Franklin's copyrght claims.
5
6
Dated: February 4,2008 SCOTT A. EDELMAN
7 CYNTHIA S. ARTO
BRENDA L. KLEIDOSTY
8 GIBSON, DUN & CRUTCHER LLP
9
10
By: r/4'
Cyn ia S. Arato
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Attorneys for Defendant
12 WARNER MUSIC GROUP CORP.
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AMENDED COMPLAINT

David Grisman Et Al v. UMG Recordings Inc Et Al - Document No. 60

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David Grisman Et Al v. UMG Recordings Inc Et Al - Document No. 60

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David Grisman et al v. UMG Recordings Inc et al Doc.

1 SCOTT A. EDELMAN (SBN 116927)

5 CYNTHIA S. ARA TO (SBN 156856)

Or Against Each Plaintiff Or Defendant Arsing Out Of The Same Transaction

10 Desert Empire Bank v. Insurance Co. of North America,

19 SAES Getters S.p.A. v. Aeronex, Inc.

1 Defendant Warner Music Group Corp. ("Warner") respectfully submits this

2 opposition to Plaintiffs' Motion for Leave to File a Second Amended Complaint.

9 record companies alleged to have exploited certain plaintiffs' copyrghted musical

21 copyrighted musical compositions. (Second Am. CompL. ~ 16) Grisman further

1 belated payments. (Id. ~ 20) Grisman brings this claim on behalf of

3 and owing them by Warner and/or Rhino.

4 Second, Rodney Franklin ("Franklin") seeks to bring various copyrght claims

5 (including for direct, contributory and vicarious infrngement) against Ryko

28 of Civil Procedure. . .. In conjunction with Rule 15, Rule 20 . . . allows

1 the permssive joinder of parties. . .. We conclude that. . . the district

3 permssive joinder under Rule 20.

9 leave to amend in connection with consideration of improper joinder).3

1 Rule 20(a) thus imposes two independent requirements before joinder is

7 In addition, "Rule 20 is designed to promote judicial economy, and reduce

27 parties that Plaintiffs seek to join.

1 B. Plaintiffs' Claims Do Not Arise Out Of The Same Transaction Or

11 "logical relation" is insufficient to constitute a common transaction or occurrence as

9 acts do not arise from the same transaction. ").

10 In addition, one court declined to join breach of contract and copyrght

20 each plaintiff or defendant relating to or arising out of the same transaction or

3 Plaintiffs' motion also should be denied because Plaintiffs' proposed claims

10 infringement claims. Thus, Grisman's claim concerns nine musical compositions

18 (F ootnote continued from previous page J

6 discovery will be necessary relating to Grisman's breach of contract claim. Finally,

10 Joinder is also inappropriate in this case because it would violate principles of

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