Skidmore v. Led Zeppelin - Def Opp To Extension of Time For Summary Judgment PDF

Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 1 of 28 Page ID #:2210
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Peter J. Anderson, Esq., Cal. Bar No. 88891

E-Mail: pja@pjanderson.com
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
100 Wilshire Boulevard, Suite 2010
Santa Monica, CA 90401
Tel: (310) 260-6030
Fax: (310) 260-6040
Attorneys for Defendants
JAMES PATRICK PAGE, ROBERT ANTHONY
PLANT, JOHN PAUL JONES, WARNER/CHAPPELL
MUSIC, INC., SUPER HYPE PUBLISHING, INC.,
ATLANTIC RECORDING CORP., RHINO
ENTERTAINMENT COMPANY and WARNER
MUSIC GROUP CORP.
Helene Freeman, Esq., admitted pro hac vice
E-Mail: hfreeman@phillipsnizer.com
PHILIPS NIZER LLP
666 Fifth Avenue
New York, NY 10103-0084
Tel: (212) 977-9700
Fax: (212) 262-5152
Attorneys for Defendants
JAMES PATRICK PAGE, ROBERT ANTHONY
PLANT and JOHN PAUL JONES
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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MICHAEL SKIDMORE, etc.,

Plaintiff,
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vs.
LED ZEPPELIN, et al.,
Defendants.
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Case No. 2:15-cv-03462 RGK (AGRx)

DEFENDANTS OPPOSITION TO
PLAINTIFFS EX PARTE
APPLICATION TO EXTEND TIME
TO RESPOND TO MOTION FOR
SUMMARY JUDGMENT
TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES..............................................1
1.
INTRODUCTION ..............................................................................................1
2.
PLAINTIFFS APPLICATION SHOULD BE DENIED ..................................3
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(a)
February 25, 2016 Filing and March 28, 2016 Hearing Dates and
the Resulting Opposition Deadlines and Used those Dates for His
Own Motion .............................................................................................3
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At the LR 7-3 Pre-Filing Conference, Plaintiff Agreed to the
(b)
Since August 2015, Plaintiff Has Known the Time that He Would
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Have to File a Response to Defendants Motion, and Plaintiff
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Delayed Until He Could Not Seek Relief by Noticed Motion ................4
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(c)
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Plaintiff Fails to Address the Consequences to the Courts

Scheduled Dates if His Application Were Granted .................................5
(d)
Implicitly Acknowledging that His Application Would Interfere
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with the Courts Scheduled Dates, Plaintiff Relies on FRCP 16(b),
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But He Cannot Show the Required Diligence and Good Cause ..............6
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(1)
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Plaintiff Has Not Been Diligent: He Failed to Promptly Seek

the Relief He Now Requests and Failed to Promptly Pursue
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Discovery and the Allegedly Deficient Discovery Responses ......6
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(2)
Plaintiffs Claim that Defendants Failed to Provide Discovery ....7

i.
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Motion for Summary Judgment ...........................................7
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The Discovery Plaintiff Refers to Is Irrelevant to the
ii.
(3)
Plaintiffs Accusations Are False ........................................8
Plaintiffs Conclusory Reference to a Plethora of Witnesses

and Experts Does Not Establish Good Cause ............................10
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(4)
Plaintiffs Request .......................................................................10
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Defendants Would Be Substantiality Prejudiced by
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CONCLUSION ................................................................................................11
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TABLE OF AUTHORITIES
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Cases
In re Intermagnetics America, 101 B.R. 191 (C.D. Cal. 1989) ....................................5
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) ............ 6, 7, 10
Mission Power Engg v. Continental Casualty, 883 F. Supp. 488
(C.D. Cal. 1995) .........................................................................................................5
Ojo v. Farmers Group, Inc., 565 F.3d 1175 (9th Cir. 2009) .......................................3
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Rules
Federal Rule of Civil Procedure 16 ..................................................................... 5, 6, 7
Federal Rule of Civil Procedure 26 ................................................................... 4, 6, 14
Local Rule 6-1 ..........................................................................................................3, 4
Local Rule 7-3 ..........................................................................................................1, 3
Local Rule 16-2 ............................................................................................................5
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MEMORANDUM OF POINTS AND AUTHORITIES
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1.
INTRODUCTION
Plaintiffs ex parte application is remarkable for what it omits and what it
misstates.
Plaintiff omits that in the parties February 18, 2016 Local Rule 7-3 pre-filing
conference, plaintiffs counsel agreed to defendants filing their summary judgment
motion on February 25, 2016 for hearing on March 28, 2016 thereby establishing
March 7, 2016 as the deadline for plaintiffs response and plaintiff used those
same dates for his own motion for leave to amend his complaint. See, below at 3-4.
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Plaintiff also omits that he is now asking for relief that the Court declined to
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provide when it issued its August 17, 2015 Scheduling Order (Doc. 78). Not only is
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plaintiff requesting anew relief previously denied, but he has known since August
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2015 that defendants intended to move for summary judgment on February 25, 2016
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and that his response would be due March 7, 2016. He cannot delay until there is
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insufficient time to seek relief by noticed motion and then seek it by ex parte
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application. See, below at 4-5.
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Plaintiff also omits the consequences to the Courts scheduled dates, and the
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resulting prejudice, if the application were to be granted. The Court set a tight
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schedule and enlarging the briefing time would mean, for example, moving the
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hearing on defendants motion so that it would be in the midst of the many deadlines
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that precede the April 25, 2016 Pretrial Conference and May 10, 2016 Trial. That,
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in turn, would mean that the parties would be unlikely to have the Courts ruling
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before expending substantial effort and expense in trial preparation that will be
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rendered moot if the motion is granted. See, below at 5-6. In addition to that
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substantial prejudice, defendants and their counsel have made commitments and
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incurred expenses in reliance on the scheduled dates. See, below at 10-11.
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And, ultimately, plaintiffs application is based on a red herring contrived

from demonstrably untrue statements.
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The red herring is that allegedly-late discovery responses from defendants are
relevant to defendants pending motion for summary judgment.
defendants motion is based on documents and information either from plaintiff and
his witnesses or that plaintiff should have had before filing this case.
defendants motion raises that the musical composition Taurus is either a work for
hire (and plaintiffs claims barred on that ground) or was assigned to Hollenbeck
Music (and his claims barred by laches) or was waived or abandoned by plaintiffs
predecessors, and in any event that plaintiffs musicologist failed to opine as to the
only relevant work, namely the registered 1967 Taurus transcription that plaintiff
Defendants SJ Memo. (Doc. 97-1).
Actually,
Thus,
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also never produced.
Discovery from
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defendants is irrelevant to all of that. Instead, plaintiffs ownership of the allegedly-
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infringed copyright and the Taurus transcription in which that copyright was
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registered, are all matters within plaintiffs province and, indeed since he bears the
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burden of proof on his claims matters for which he was required by Federal Rule
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of Civil Procedure 11 to have evidence in hand before filing suit. See, below at 7-8.
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As to plaintiffs demonstrably untrue statements, they include, for example,
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that defendants produced no documents in discovery in November 2015 (they
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produced over 600 pages of documents including 80 audio recordings), that the
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additional documents and supplemental interrogatory responses they provided once
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the Protective Order was entered bear on the pending motion (they relate to
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revenues, expenses and profits, which are irrelevant to the pending motion) and that
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plaintiff received only seven days to respond to the motion (not only was the motion
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discussed in depth on February 18, 2016, but it was filed on February 25, 2016, with
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plaintiffs response due eleven days later, on March 7, 2016, pursuant to the agreed
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March 28, 2016 hearing date). See, below at 8-10.
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Plaintiff, by omission and material misstatements, paints a false picture.
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Defendants motion is straightforward, clear and based on matters that plaintiff if
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he had a claim would have established before he even filed this case. Under the
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agreed filing and hearing dates he received more time than provided by the Local
Rules to submit his response, and giving him even more time is not justified and
would conflict with the Courts scheduled dates and prejudice defendants.
Defendants respectfully submit that plaintiff fails to carry his burden and his
application should be denied.1
2.
PLAINTIFFS APPLICATION SHOULD BE DENIED

(a)
At the LR 7-3 Pre-Filing Conference, Plaintiff Agreed to the
February 25, 2016 Filing and March 28, 2016 Hearing Dates and
the Resulting Opposition Deadlines and Used those Dates for His
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Own Motion
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As shown below, plaintiff has known since August 2015 that under this
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Courts Scheduling Order and Local Rules defendants would be filing their motion
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for summary judgment on February 25, 2016 and that his response would be due on
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March 7, 2016. Moreover, he fails to disclose that in the Local Rule 7-3 pre-filing
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conference he agreed to the filing and hearing dates that trigger the March 7, 2016
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deadline.
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In the parties February 18, 2016 pre-filing conference, plaintiffs and
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defendants counsel discussed their respective motions and when they would be filed
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and heard. Defendants counsel advised that they intended to file on February 25,
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2016 for hearing on March 28, 2016, and plaintiffs counsel not only agreed to those
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dates, but advised that he would use them for plaintiffs motion to amend his
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complaint to add additional defendants. This agreement which makes the parties
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respective opposition papers due March 7, 2016 (LR 6-1) is proven both by the
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attached Declarations and by the fact that plaintiff also filed his motion on February
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25, 2016 for hearing on March 28, 2016. Pltfs Motion (Doc. 98); Anderson Decl. at
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13, 4; Freeman Decl. at 1, 3.
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Plaintiff cannot try to do by reply what he failed to do in his application. Ojo v.

Farmers Group, Inc., 565 F.3d 1175, 1185, n. 13 (9th Cir. 2009).
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Plaintiff agreed to the filing and hearing date, which automatically set the
March 7, 2016 response deadline, and should be required to live up to his agreement.
(b)
Since August 2015, Plaintiff Has Known the Time that He Would
Have to File a Response to Defendants Motion, and Plaintiff
Delayed Until He Could Not Seek Relief by Noticed Motion
Plaintiff also omits from his application that this is not the first time in this
case that the issue of extra time to respond to dispositive motions was before the
Court.
In their August 10, 2015 Joint Rule 26(f) Report, the parties proposed a
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briefing schedule for dispositive motions, enlarging the time provided by Local Rule
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6-1, and to accommodate that modification the parties proposed additional time
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between the dispositive motion cut-off and the pretrial conference and trial. Joint
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Rule 26(f) Report (Doc. 75) at 5-6. The Court, however, declined to adopt that
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proposal, setting a February 25, 2016 deadline to file dispositive motions and
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leaving the parties briefing per the Local Rule, with the Pretrial Conference less
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than 30 days after the dispositive motion hearing date. August 17, 2015 Scheduling
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Order (Doc. 78). As a result, plaintiff has known since August 2015 that defendants
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would be filing their motion for summary judgment on February 25, 2016 and he
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would have until March 7, 2016 to file his reply.2
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Yet plaintiff did nothing for six months and delayed until after defendants
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filed their motion, before asking the Court to alter the briefing schedule flowing
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from its August 2015 Scheduling Order. Knowing that defendants motion was
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coming, plaintiff could and should have filed a noticed motion, rather than wait until
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Plaintiff accuses defendants of gamesmanship in filing on Thursday, February

25, 2016. Not only is that the scheduled date, it is the date that plaintiffs counsel
agreed to in the February 18, 2016 pre-filing conference, just eight days after the
close of fact discovery. Also, if defendants had filed on the preceding Monday for a
hearing 28 days hence, plaintiffs response would have been due in seven days rather
than the eleven days he received by defendants filing on February 25, 2016.
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there is insufficient time to do so. Ex parte applications are not intended to save the
day for parties who have failed to act diligently.
Continental Casualty, 883 F. Supp. 488, 493 (C.D. Cal. 1995), quoting In re
Intermagnetics America, 101 B.R. 191, 193 (C.D. Cal. 1989).
Mission Power Engg v.
For six months, plaintiff has known the briefing schedule he faced, he did
nothing about it and he cannot seek by ex parte application relief that he could and
should have sought by noticed motion. For that additional reason, his application is
properly denied.
(c)
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Plaintiff Fails to Address the Consequences to the Courts

Scheduled Dates if His Application Were Granted
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Plaintiff fails to even mention the consequences to this Courts scheduled
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dates if his application were granted which is especially surprising since that was
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the reason defendants provided for declining plaintiffs March 1, 2016 request that
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they stipulate to modify the briefing schedule. Anderson Decl. at 13, 3.
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Plaintiffs proposed order (Doc. 110-1) only mentions extending the March 7,
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2016 deadline for plaintiff to file his response. But, extending that deadline would
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also necessarily mean (1) moving the March 14, 2016 deadline for defendants to file
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their reply and (2) moving the March 28, 2016 hearing date into April 2016.
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However, the Courts scheduled dates include the April 25, 2016 Pretrial
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Conference and May 10, 2016 Trial, and those dates trigger deadlines to conduct the
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Local Rule 16-2 meeting of counsel and the deadlines to file, for example, motions
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in limine, proposed jury instructions and memoranda of contentions of fact and law.
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Those efforts, which will involve substantial time and expense, will be rendered
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moot if defendants motion is granted. But if the hearing is moved to accommodate
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plaintiff request, the hearing will be in the midst of those deadlines.
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In addition, the settlement conference before Magistrate Judge Rosenberg is
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set for March 23, 2016 (Doc. 94), and that date was specifically chosen because
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Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 10 of 28 Page ID

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under the currently scheduled dates it is after the close of all briefing of
defendants motion for summary judgment and before the March 28, 2016 hearing.
It is an understatement that there are multiple, fixed and important deadlines
that would be directly impacted if the Court were to grant plaintiffs request. That is
another reason plaintiffs application should be denied.
(d)
Implicitly Acknowledging that His Application Would Interfere
with the Courts Scheduled Dates, Plaintiff Relies on FRCP 16(b),
But He Cannot Show the Required Diligence and Good Cause
Implicitly recognizing his requests direct consequences to the Courts
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Scheduling Order and the deadlines resulting from it, plaintiff cites Federal Rule of
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Civil Procedure 16(b) as the governing standard. Application (Doc. 110) at 3:5-10,
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citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
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And, plaintiff cannot meet that standard.
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(1)
Plaintiff Has Not Been Diligent: He Failed to Promptly Seek
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the Relief He Now Requests and Failed to Promptly Pursue
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Discovery and the Allegedly Deficient Discovery Responses
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Plaintiff does not claim some unforeseen event recently occurred and
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interferes with his ability to respond to defendants motion. Instead, he asserts
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without any proof that he has been diligent, and then argues defendants failed to
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respond to discovery.
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But, plaintiff has known since August 2015 that under this Courts Scheduling
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Order and Local Rules defendants would be filing their motion for summary
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judgment on February 25, 2016 and that his response would be due on March 7,
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2016. Yet, plaintiff did not act. Quite the contrary, at the February 18, 2016 pre-
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filing conference he agreed to the filing and hearing dates.
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Plaintiffs claimed diligence in discovery also is belied by the facts. The
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Federal Rule of Civil Procedure 26(d)(1) hold on discovery was lifted when the
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parties held their Rule 26(f) meeting of counsel on August 10, 2015, yet plaintiff
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delayed until October 13, 2015 before serving his first discovery requests. Anderson
Decl. at 14, 5.
defendants compliance with discovery (see, below 8-10), even his misstatements
show a lack of diligence. Thus, he claims defendants produced no documents in
November 2015 (Application at 1:17-20) which is not true but then diligence
required that he file a motion to compel and, of course, he did not. Similarly, he
claims defendants provided inadequate interrogatory responses in November 2015
(Application at 1:25-26) which also is not true but then he should have filed a
motion to compel, and, again, he did not. Instead, and to this day, he has not
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And, while there is no truth to plaintiffs accusations as to
identified any deficiencies in those responses.
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Rule 16(b)s good cause standard primarily considers the diligence of the
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party seeking [relief] . . . . If that party was not diligent, the inquiry should end.
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Johnson, 975 F.2d at 609. Plaintiff, knowing the motion and briefing schedule he
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faced, failed to proceed diligently and, accordingly, his application should be denied.
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(2)
Plaintiffs Claim that Defendants Failed to Provide Discovery

i.
The Discovery Plaintiff Refers to Is Irrelevant to the

Motion for Summary Judgment
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Plaintiff accuses defendants of not complying with discovery, but he never
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specifically explains how that discovery is relevant to his response to defendants
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motion for summary judgment. The reason is simple: the discovery is irrelevant to
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defendants motion.
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Defendants motion for summary judgment is based on defects in plaintiffs
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claimed ability to sue for infringement of the copyright in the Taurus musical
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composition and relies largely on plaintiffs own documents and the testimony of his
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own witnesses; plaintiffs failure to produce the 1967 Taurus transcription protected
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by the copyright he sues upon; plaintiffs failure to disclose any expert opining as to
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any claimed similarities between Stairway to Heaven and the 1967 transcription,
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which is the only copyrighted work on which this case could be predicated; and
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statements that plaintiffs predecessor, Randy Wolfe, made in 1991 and which were
included in a publicly-available album released that year. See, Defendants SJ
Memo.
Plaintiff complains that defendants produced 40,000 pages of documents on
December 29, 2015, once the Stipulated Protective Order was entered on December
28, 2015. But, that production consisted of documents such as contracts and royalty
statements relating to defendants respective revenues, expenses and profits, none of
which is relevant to plaintiffs claimed ability to sue for infringement of the
copyright in the Taurus musical composition. Anderson Decl. at 14-15, 8. Not
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only did defendants produce the documents within a day of the entry of the
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Protective Order, but the production has nothing to do with the pending motion for
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summary judgment.
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Plaintiff also complains that in January 2016 defendants provided
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supplemental interrogatory responses. But, those supplemental responses merely
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provided the confidential financial information that was not included in the initial
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responses because the Protective Order was not yet in place. Anderson Decl. at 14-
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15, 9. Plaintiff filed three of the Supplemental Interrogatory Responses under seal
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(Doc. 103; Exhibits 3, 4 & 5) and the Court can see for itself that the information is
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limited to revenues.
Defendants supposed failure to respond to discovery has nothing to do with
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defendants summary judgment motion or plaintiffs response to it.

ii.
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Plaintiffs Accusations Are False
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And, plaintiffs accusations of discovery misuse are demonstrably false.
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Plaintiff represents to the Court that after plaintiff served his discovery
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requests in October 2015, defendants failed to produce any documents until
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December 2015 and after entry of the Protective Order. Application at 1:18-20. In
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truth, defendants timely produced in November 2015 non-confidential documents
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consisting of over 600 pages of documents and audio recordings. Anderson Decl. at
14, 6, & Exh. 1.
Plaintiff represents to the Court that defendants November 2015 interrogatory
responses were not meaningful and defendants did not provide meaningful
responses until January 2016. However, defendants initial interrogatory responses
were full and complete and omitted only confidential financial information, which
was provided by supplemental responses once the Protective Order was in place.
Plaintiff never raised any deficiency in defendants interrogatory responses and, in
his application, does not identify any deficiency. Anderson Decl. at 14, 6-7.
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Plaintiff filed one of the initial Interrogatory Responses under seal (Doc. 103;
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Exhibit 2) and the Court can see for itself that substantive responses were provided
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except as to confidential financial information, which was provided by a
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supplemental response (Doc. 103; Exhibit 3) once the Protective Order was in place.
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Plaintiff represents to the Court that when it was determined that many
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crucial documents had not been produced, Defendants have continued to produce
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documents right up until the last two weeks. Application at 1:21-24. That is also
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untrue: the documents recently provided were simply a late production by a
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subpoenaed non-party. Anderson Decl. at 15, 11.
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Plaintiff represents to the Court that Defendants did not produce any expert
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reports, . . . and that, as a result, when [defendants] motion was filed [on February
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25, 2016], Plaintiff did not have the benefit of seeing any expert report from the
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Defendants.
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provided initial expert disclosures on February 10, 2016. Anderson Decl. at 15,
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10, & Exh. 2.
Application at 2:14-18.
That is also untrue: defendants timely
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Plaintiff represents to the Court that defendants delayed until February 25,
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2016 to file their motion for summary judgment and that plaintiff has been afforded
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a mere seven (7) days to respond to defendants motion. Application at 2:24-25.
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But as plaintiffs counsel agreed in the pre-filing conference defendants filed on

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Thursday, February 25, 2016, for hearing on March 28, 2016, giving plaintiff eleven
days to file his response.
It is difficult to find a factual assertion in plaintiffs application that is true.
Instead, plaintiff relies on misstatements to obscure that plaintiff failed to act
diligently and has no grounds for his request, which will only interfere with the
Courts scheduled dates and prejudice defendants.
(3)
Plaintiffs Conclusory Reference to a Plethora of Witnesses

and Experts Does Not Establish Good Cause
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Apparently as an afterthought, plaintiff adds in passing that [t]here are a
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plethora of witnesses and expert witnesses located all over the country in this case, .
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. . . Application at 2:27-28. That bare assertion cannot be credited nor does it
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make any sense given the narrow and targeted grounds of defendants motion. For
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example, no number of witnesses or experts is going to change the fact that the
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Taurus musical composition is a work for hire; that Randy Wolfe consented to the
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alleged use; that plaintiffs claim as beneficial owner of the copyright is barred by
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laches; that plaintiff failed to produce the 1967 Taurus transcription that constitutes
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the sole copyrighted work upon which his infringement claim could be predicated;
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and that he failed to disclose any expert as to the 1967 Taurus transcriptions
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supposed similarities with Stairway to Heaven.
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grounds is, alone, confirmation that plaintiffs claims lack merit, and the threat to
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submit declarations from an unidentified plethora of witnesses changes nothing.
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(4)
Each of these straightforward
Defendants Would Be Substantiality Prejudiced by Plaintiffs

Request
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Prejudice to the opposing party is not required where, as here, the moving
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party has not been diligent. Johnson, 975 F.2d at 609. But, defendants and their
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counsel would be substantially prejudiced if plaintiffs application were granted.
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As discussed above, granting plaintiffs application would also mean moving
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defendants deadline to file their reply and moving the hearing date, interfering with
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the Courts scheduled dates and deprive defendants of a ruling before the parties
incur substantial effort and expense in pretrial procedures. In addition, defendants
and their counsel have acted in reliance on the currently-scheduled dates. For
example, defendants representatives have already purchased tickets to attend the
March 23, 2016 settlement conference with Magistrate Judge Rosenberg.
individual defendants New York counsel has already purchased tickets to be present
at that settlement conference and the March 28, 2016 hearing on defendants motion.
In addition, the individual defendants arranged to be available for the May 10, 2016
trial, if one is had, and cannot appear in the subsequent months. Freeman Decl. at
The
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Also, defendants local counsel has depositions in another case
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scheduled for the week after defendants reply is currently due, and moving the reply
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date would result in defendants counsel being unable to both attend those
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depositions and prepare defendants reply. Anderson Decl. at 16, 13.

Plaintiffs request to modify the scheduled dates would also prejudice
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defendants, which is yet another reason his application should be denied.
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3.
CONCLUSION
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Plaintiff has known since August 2015 that he stood to have only seven days
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to file his response to defendants motion for summary judgment. As it turns out,
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that time was increased to eleven days when as plaintiffs counsel agreed in the
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pre-filing conference defendants filed their motion on Thursday, February 25,
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2016 with a March 28, 2016 hearing date. Yet, plaintiff belatedly seeks by ex parte
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application a briefing schedule that he could and should have sought by noticed
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motion. Further, plaintiff fails to even mention, let alone address, that the extension
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he seeks would interfere with the Courts scheduled dates. And, he relies on false
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statements of fact as a smokescreen to cover not only his lack of diligence, but a
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fatal flaw in his application: defendants motion is based on documents and
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information either from plaintiff and his witnesses or that plaintiff should have had
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before filing this case.

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Defendants respectfully submit that plaintiffs application should be denied.
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Dated: March 3, 2016
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/s/ Peter J. Anderson

Peter J. Anderson, Esq.
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
Attorney for Defendants
JAMES PATRICK PAGE, ROBERT
ANTHONY PLANT, JOHN PAUL JONES,
WARNER/CHAPPELL MUSIC, INC.,
SUPER HYPE PUBLISHING, INC.,
ATLANTIC RECORDING CORP., RHINO
ENTERTAINMENT COMPANY and
WARNER MUSIC GROUP INC.
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/s/ Helene M. Freeman

Helene M. Freeman, Esq.
PHILLIPS NIZER LLP
Attorney for Defendants
JAMES PATRICK PAGE,
ROBERT ANTHONY PLANT and
JOHN PAUL JONES
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Attestation Regarding Signatures

The undersigned attests that all signatories listed, and on whose behalf this
filing is submitted, concur in this filings content and have authorized its filing.
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Dated: March 3, 2016

Peter J. Anderson, Esq.
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DECLARATION OF PETER J. ANDERSON
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I, Peter J. Anderson, declare and state:
1.
I am an attorney admitted to practice before this Court and all Courts of
the State of California. I have personal knowledge of the following facts and could
competently testify to these facts if called upon to do so.
2.
I represent defendants Warner/Chappell Music, Inc., Syperhype
Publishing, Inc., Atlantic Recording Corp., Rhino Entertainment Company, James
Patrick Page, Robert Plant and John Paul Jones in this action. This Declaration is
submitted in support of their opposition to the ex parte Application of plaintiff
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Michael Skidmore for an Order extending the time for him to file his response,
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presently due March 7, 2016, to defendants February 25, 2016 motion for summary
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judgment or partial summary judgment.
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3.
In my March 1, 2016 e-mail to plaintiffs counsel, Glen Kulik, Esq.,
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responding to his request that the parties agree to a briefing schedule giving plaintiff
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more time to file his reply, I stated [w]e cant agree to that, including because it
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would interfere with the scheduled dates. Although I raised the point, plaintiffs
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application does not address that his request would interfere with the scheduled
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dates.
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4.
Fact discovery closed on February 10, 2016. On February 18, 2016,
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plaintiffs other counsel, Francis Malofiy, Esq., and Helene Freeman, Esq., and I
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conducted our pre-filing conference with respect to defendants motion for summary
22
judgment or partial summary judgment and plaintiffs motion for leave to amend his
23
complaint to add additional defendants. I told Mr. Malofiy that we would be filing
24
defendants motion on February 25, 2016 for hearing on March 28, 2016. Mr.
25
Malofiy said that the hearing date worked for him and he would file plaintiffs
26
motion for leave to amend for hearing on the same day, March 28, 2016. At no
27
point did Mr. Malofiy suggest that plaintiff would need any additional time to file
28
his response, which under the Local Rules is due March 7, 2016, providing plaintiff
13

#:2227
1
2
eleven days to respond.

5.
The Federal Rule of Civil Procedure 26(f) conference of counsel was
held on August 10, 2015, and, as a result, the Rule 26(d)(1) hold on discovery was
lifted that same day.
discovery directed to plaintiff on August 14, 2015. Plaintiffs counsel, however, did
not serve any discovery until October 13, 2015, when they served interrogatories and
requests for production.
6.
On behalf of defendants, I caused to be served written
On November 23, 2015, defendants timely responded to plaintiffs
October 13, 2015 discovery. Those responses were substantive and omitted only
10
confidential financial information and documents because plaintiff, although
11
agreeing that a stipulated protective order is appropriate, never prepared one. On
12
November 23, 2015 and with defendants responses, I produced documents and 80
13
audio recordings, bearing control numbers from 1 through 603. Attached to this
14
Declaration as Exhibit 1 is a true and correct copy of my November 23, 2015 letter
15
to plaintiffs counsel and a photocopy of the CD that accompanied that letter.
16
Although in his application plaintiff states that defendants November 2015
17
interrogatory responses were not meaningful, plaintiffs counsel has never raised
18
any deficiency in defendants interrogatory responses and, in his application, does
19
not identify any deficiency.
20
7.
Because plaintiffs counsel had not prepared a Stipulated Protective
21
Order, I prepared one and sent it to plaintiffs counsel on December 3, 2015.
22
However, they did not approve it until several weeks later, and it was then submitted
23
to the Court and filed on December 28, 2015. The very next day I sent plaintiffs
24
counsel a hard drive with some 40,000 pages of confidential contracts and financial
25
information.
26
8.
In his application, plaintiff complains that the approximately 40,000
27
pages were not produced until December 29, 2015. Plaintiff omits his own delay in
28
connection with the Protective Order and omits that the documents produced on
14

#:2228
December 29, 2015 do not relate to the grounds of defendants motion for summary
judgment. While defendants motion is directed to defects in plaintiffs claims, the
documents produced December 29, 2015 relate to defendants respective revenues,
expenses and profits, which become relevant only if summary judgment is not
granted.
9.
In his application, plaintiff also complains that in January 2016
defendants provided supplemental interrogatory responses.
supplemental responses provided the confidential financial information that was not
included in the initial responses because the Protective Order was not yet in place. I
10
note that three of those Supplemental Interrogatory Responses were filed under seal
11
by plaintiff (Doc. 103) and the Court can see that the information is limited to
12
revenues.
13
interrogatory responses were deficient.

10.
14
However, those
Also, plaintiffs counsel has never suggested that defendants
Plaintiff advises the Court that Defendants did not produce any expert
15
reports, . . . and that, as a result, when [defendants] motion was filed [on February
16
25, 2016], Plaintiff did not have the benefit of seeing any expert report from the
17
Defendants. Application at 2:14-18; Kulik Decl. at 2:11-14. That also is not true.
18
Defendants timely provided initial expert disclosures on February 10, 2016, and
19
attached to this Declaration as Exhibit 2 is a copy of my February 10, 2016 letter to
20
plaintiffs counsel and the first page and proof of service of defendants initial expert
21
disclosures. I also note that a copy of Dr. Ferraras Report is attached as Exhibit 1 to
22
his Declaration filed February 25, 2016 in support of defendants motion.

11.
23
In his application, plaintiff states that when it was determined that
24
many crucial documents had not been produced, Defendants have continued to
25
produce documents right up until the last two weeks. Application at 1:21-24. This
26
statement includes no specifics and I assume that plaintiff refers to the fact that when
27
I received additional documents from a third party to whom I had directed a
28
///
15

#:2229
subpoena, I immediately literally within minutes forwarded them to plaintiffs
counsel.
12.
Plaintiff asserts that his principal attorney is Mr. Malofiy, who is
part of a two-attorney law firm . . . . Mr. Kulik, however, has been actively
involved in this case and, for example, took the last two depositions before the
discovery cut-off. Based on his firms website, Mr. Kulik is a principal of an
eleven-attorney firm. See, http://www.kgslaw.com/attorneys.
13.
In reliance on the scheduled dates and Mr. Malofiys failure to object or
raise any issue with defendants filing their motion on February 25, 2016 for hearing
10
on March 28, 2016, I blocked out the week of March 7, 2016 to work on defendants
11
reply papers for filing March 14, 2016. If plaintiffs application were to be granted,
12
that would cause a substantial problem for me because two depositions in another
13
action are set for the week of March 14, 2016 and I would be unable to both attend
14
or take those depositions and also prepare defendants reply papers that same week.
15
16
I declare under penalty of perjury that the foregoing is true and correct.
Executed on January 28, 2016 in Los Angeles County, California.
17
18

PETER J. ANDERSON
19
20
21
22
23
24
25
26
27
28
16

#:2230
DECLARATION OF HELENE FREEMAN
1
2
I, Helene Freeman, declare and state:
1.
I am an attorney admitted to practice before all Courts of the State of
New York and admitted pro hac vice to appear in this action. I have personal
knowledge of the following facts and could competently testify to these facts if
called upon to do so.
2.
I represent defendants James Patrick Page, Robert Plant and John Paul
Jones in this action. This Declaration is submitted in support of their opposition to
the ex parte Application of plaintiff Michael Skidmore for an Order amended this
10
11
Courts Scheduling Order.

3.
I participated in the February 18, 2016 pre-filing conference call with
12
plaintiffs counsel, Francis Malofiy, Esq., and Peter J. Anderson, Esq., and confirm
13
the statements contained in Mr. Andersons Declaration, above.
14
15
16
4.
Moving the scheduled dates would cause substantial problems for my
clients, their other representatives and me.

5.
I and other of defendants representatives have already purchased
17
tickets to attend the March 23, 2016 settlement conference with Magistrate Judge
18
Rosenberg and, in my case, to also attend the March 28, 2016 hearing on
19
defendants motion.
20
settlement conference remains as set and the hearing moved, I would have to travel
21
across country a second time. In addition, the individual defendants arranged to be
22
available for the May 10, 2016 trial and moving the trial would be a substantial
23
hardship for them and others.
24
25
The tickets I purchased are non-refundable.
Also, if the
I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 3, 2016 in New York, New York.
/s/ Helene Freeman
HELENE FREEMAN
26
27
28
17

#:2231
EXHIBIT 1

#:2232
(;+,%,7
18

#:2233
(;+,%,7
19

#:2234
EXHIBIT 2

#:2235
(;+,%,7
20

#:2236
(;+,%,7
21

#:2237
(;+,%,7
22

Skidmore v. Led Zeppelin - Def Opp To Extension of Time For Summary Judgment PDF

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Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 1 of 28 Page ID #:2210

Peter J. Anderson, Esq., Cal. Bar No. 88891

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL SKIDMORE, etc.,

Case No. 2:15-cv-03462 RGK (AGRx)

Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 2 of 28 Page ID #:2211

MEMORANDUM OF POINTS AND AUTHORITIES..............................................1

PLAINTIFFS APPLICATION SHOULD BE DENIED ..................................3

Own Motion .............................................................................................3

At the LR 7-3 Pre-Filing Conference, Plaintiff Agreed to the

Have to File a Response to Defendants Motion, and Plaintiff

Delayed Until He Could Not Seek Relief by Noticed Motion ................4

Plaintiff Fails to Address the Consequences to the Courts

Implicitly Acknowledging that His Application Would Interfere

with the Courts Scheduled Dates, Plaintiff Relies on FRCP 16(b),

Plaintiff Has Not Been Diligent: He Failed to Promptly Seek

Discovery and the Allegedly Deficient Discovery Responses ......6

Plaintiffs Claim that Defendants Failed to Provide Discovery ....7

Motion for Summary Judgment ...........................................7

The Discovery Plaintiff Refers to Is Irrelevant to the

Plaintiffs Accusations Are False ........................................8

Plaintiffs Conclusory Reference to a Plethora of Witnesses

Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 3 of 28 Page ID #:2212

Plaintiffs Request .......................................................................10

Defendants Would Be Substantiality Prejudiced by

Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 4 of 28 Page ID #:2213

In re Intermagnetics America, 101 B.R. 191 (C.D. Cal. 1989) ....................................5

Mission Power Engg v. Continental Casualty, 883 F. Supp. 488

(C.D. Cal. 1995) .........................................................................................................5

Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 5 of 28 Page ID #:2214

MEMORANDUM OF POINTS AND AUTHORITIES

conference, plaintiffs counsel agreed to defendants filing their summary judgment

application. See, below at 4-5.

incurred expenses in reliance on the scheduled dates. See, below at 10-11.

And, ultimately, plaintiffs application is based on a red herring contrived

Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 6 of 28 Page ID #:2215

relevant to defendants pending motion for summary judgment.

also never produced.

defendants is irrelevant to all of that. Instead, plaintiffs ownership of the allegedly-

As to plaintiffs demonstrably untrue statements, they include, for example,

that defendants produced no documents in discovery in November 2015 (they

additional documents and supplemental interrogatory responses they provided once

March 28, 2016 hearing date). See, below at 8-10.

Plaintiff, by omission and material misstatements, paints a false picture.

Defendants motion is straightforward, clear and based on matters that plaintiff if

Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 7 of 28 Page ID #:2216

application should be denied.1

PLAINTIFFS APPLICATION SHOULD BE DENIED

At the LR 7-3 Pre-Filing Conference, Plaintiff Agreed to the

In the parties February 18, 2016 pre-filing conference, plaintiffs and

13, 4; Freeman Decl. at 1, 3.

Plaintiff cannot try to do by reply what he failed to do in his application. Ojo v.

Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 8 of 28 Page ID #:2217

Have to File a Response to Defendants Motion, and Plaintiff

Delayed Until He Could Not Seek Relief by Noticed Motion

would have until March 7, 2016 to file his reply.2

Plaintiff accuses defendants of gamesmanship in filing on Thursday, February

Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 9 of 28 Page ID #:2218

day for parties who have failed to act diligently.

Intermagnetics America, 101 B.R. 191, 193 (C.D. Cal. 1989).

Mission Power Engg v.