Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 1 of 11 Page ID #:7426 1 FRANCIS M. GREGOREK (144785) gregorek@whafh.com 2 BETSY C. MANIFOLD (182450) manifold@whafh.com 3 RACHELE R. RICKERT (190634) rickert@whafh.com 4 MARISA C. LIVESAY (223247) livesay@whafh.com 5 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 6 750 B Street, Suite 2770 San Diego, CA 92101 7 Telephone: 619/239-4599 Facsimile: 619/234-4599 8 9 Interim Lead Counsel for Plaintiffs and the [Proposed] Class 10 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA - 13 WESTERN DIVISION 14 15 GOOD MORNING TO YOU 16 PRODUCTIONS CORP., et al., 17 Plaintiffs, 18 19 v. 20 WARNER/CHAPPELL MUSIC, 21 INC., et al. 22 23 24 25 26 27 28 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Lead Case No. CV 13-04460-GHK (MRWx) JOINT STATUS REPORT PURSUANT TO SEPTEMBER 29, 2015 SCHEDULING ORDER (DKT. 245) Date: Time: Room: Judge: October 19, 2015 9:30 a.m. 650 Hon. George H. King, Chief Judge Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 2 of 11 Page ID #:7427 1 Pursuant to the Court’s September 29, 2015 Order re: Joint Status Report 2 and Status Conference (Dkt. 245), the parties met and conferred on October 6 and 3 8, 2015 regarding the most efficient manner for the action to proceed. The parties 4 file this Joint Status Report explaining their positions. The Parties briefly 5 summarize the litigation’s procedural background before explaining their positions. 6 For the Court’s convenience, the Parties attach a chart (as Exhibit A) to this Joint 7 Status Report which summarizes the Parties’ agreement and disagreement as to 8 proposed Scheduling Dates. PROCEDURAL BACKGROUND 9 I. 10 A. Bifurcation of Prior Proceedings 11 At the October 7, 2013 hearing on Defendants’ motion to dismiss, “the 12 Parties agreed that the most efficient way to proceed in this case would be to 13 bifurcate Claim One from the six other claims for the purposes of discovery and 14 summary judgment.” Dkt. 71 at 3. On October 16, 2013, the Court issued an 15 Order re: Defendants’ Motion to Dismiss Second Amended Consolidated Class 16 Action Complaint and/or Motion to Strike Plaintiffs’ Proposed Class Definition 17 (Dkt. 52), which granted in part and denied in part Defendants’ motions. See Dkt. 18 71. The October 16, 2013 Order bifurcated Claim One from all other claims 19 through Summary Judgment and stayed all other claims “including discovery 20 specific to such claims.” Dkt. 71 at 3. Plaintiffs were also granted leave to re21 plead their “two-step theory for declaratory judgment” in an amended complaint. 22 Dkt. 71 at 3-4. 23 On November 6, 2013, Plaintiffs filed a Third Amended Complaint (Dkt. 24 74), which Defendants answered on December 11, 2013 as to Claim One only 25 (Dkt. 79). Thereafter, based on the Parties’ Joint Stipulation (Dkt. 94), on April 26 29, 2014, the Court granted Plaintiffs leave to file a Fourth Amended Complaint 27 (Dkt. 95). See Dkt. 96. On May 6, 2014, Defendants answered the Fourth 28 Amended Complaint as to Claim One only. -1- Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 3 of 11 Page ID #:7428 1 B. March 24, 2014 Scheduling Conference re: Claim One 2 The Court conducted a scheduling conference with counsel on March 24, 3 2014. On the same date, the Court filed an Order Entering Schedule Dates. Dkt. 4 92. The Court agreed “to defer consideration of the statute of limitations defenses 5 and class certification at this time;” set scheduling dates for summary judgment 6 motions on Claim One; and stated that, “[i]f the summary judgment motions do not 7 dispose of this first phase of this action, we will set further scheduling dates as 8 needed.” Dkt. 92 at 1. 9 On September 22, 2015, the Court issued a Memorandum and Order Re: (1) 10 Cross-Motions for Summary Judgment (Dkt. 179); (2) Defendants’ Motion for 11 Leave to File Supplemental Evidence (Dkt. 223); and (3) Plaintiffs’ Ex Parte 12 Application to Supplement the Record (Dkt. 224) (“Summary Judgment Order”) 13 which denied Defendants’ Motion For Summary Judgment and granted in part 14 Plaintiffs’ Motion for Summary Judgment. See Dkt. 244. The Summary Judgment 15 Order determined that Defendants do not own a copyright to the Happy Birthday 16 lyrics. The Summary Judgment Order determined there are triable issues of fact on 17 Plaintiffs’ demand for a declaratory judgment that the Happy Birthday lyrics are in 18 the public domain. 19 II. 22 PARTIES’ POSITION RE: MOST EFFICIENT MANNER TO PROCEED A. Defendants’ Motion for Reconsideration or, in the Alternative, for Certification of the Summary Judgment Order 23 Defendants intend to file a Motion for Reconsideration or, in the Alternative, 24 for Certification for Appeal Pursuant to 28 U.S.C. § 1292(b), of the Summary 25 Judgment Order. Defendants will file their motion on or before October 16, 2015, 26 and notice that motion for hearing on November 16, 2015. The parties agree that 27 briefing on that motion may proceed pursuant to the schedule provided by the 28 Local Rules. 20 21 -2- Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 4 of 11 Page ID #:7429 1 2 Defendants’ Position Regarding Effect of Motion on Remaining Proceedings: 3 Defendants believe the parties should be able to serve on each other written 4 discovery on remaining claims and issues not encompassed by Phase One 5 discovery as of the date of the Status Conference. Defendants believe the parties 6 should serve written objections to the same within the time set forth in the Federal 7 Rules, but that responsive documents and written responses to interrogatories or 8 requests for admission, as well as deposition notices and subpoenas to third parties, 9 should be stayed pending the Court’s resolution of Defendants’ Motion for 10 Reconsideration or Certification. 11 Plaintiffs’ Position Regarding Effect of Motion on Remaining Proceedings: Plaintiffs believe that Defendants’ Motion is without merit and should not 12 13 delay or stay any further proceedings in this litigation. 14 B. Trial of Remaining Issues Relevant to Claim One 15 Plaintiffs’ Position: Plaintiffs believe the Court should determine whether 16 Happy Birthday is in the public domain together with its determination of Claims 17 II and III of the Complaint (as to which there is no right to a jury trial). Plaintiffs 18 believe that further proceedings on Claim One will not materially advance the 19 ultimate disposition of the litigation. 20 Defendants’ Position: Defendants believe that all of Plaintiffs’ claims, 21 except the claims for breach of contract and possibly for money had and received 22 (Claims IV and V), are equitable in nature and tried to the Court. Defendants 23 believe that all matters on Claim I as to which Plaintiffs’ motion were not granted 24 must be tried, and that the trial of such is not limited to the summary judgment 25 record. 26 advance of a jury trying the legal claims and the Court’s resolution of common 27 factual questions binding the trial of the legal claims. 28 /// Defendants do not object to the Court trying all equitable claims in -3- Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 5 of 11 Page ID #:7430 1 C. Plaintiffs’ Proposed Amended Complaint 2 On October 8, 2015, Plaintiffs provided Defendants with a proposed Fifth 3 Amended Complaint. Plaintiffs have asked Defendants to stipulate to their having 4 leave to file the Fifth Amended Complaint without prejudice to Defendants’ right 5 to move against that Complaint under Rule 12 of the Federal Rules of Civil 6 Procedure. 7 Defendants are considering Plaintiffs’ request and expect to respond to it 8 before the Status Conference. If Defendants agree to Plaintiffs’ request to stipulate 9 for leave to filing the proposed Fifth Amended Complaint, Defendants expect that 10 the parties will file before or very shortly after the Status Conference a proposed 11 stipulation setting forth (a) a stipulated agreement regarding the filing of the Fifth 12 Amended Complaint; (b) a stipulated time for Defendants to file a response to the 13 same with a reasonable extension beyond the 14 days provided by Rule 15(a)(3); 14 and (c) a stipulated proposed briefing schedule on such motion or an agreement 15 that briefing should be conducted in accordance with the Local Rules. 16 D. 17 Plaintiffs propose that: 18 Class certification and fact discovery begin immediately and to be 19 completed by April 15, 2016. Plaintiffs will file their motion for class certification on or before May 16, 20 21 Motion for Class Certification Deadlines 2016. 22 Plaintiffs request that a briefing schedule for the motion for class 23 certification be set as follows: Defendants’ response and/or opposition to be filed 24 on or before June 30, 2016. Plaintiffs’ reply to Defendants’ response to be filed on 25 or before August 19, 2016. The hearing date shall be set for August 29, 2016 or at 26 the Court’s convenience thereafter. 27 /// 28 /// -4- Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 6 of 11 Page ID #:7431 1 Defendants propose that: 2 Class certification and fact discovery commence as of the Status Conference, 3 subject to the limitations set forth in Defendants’ proposal in Section A, supra, and 4 that such discovery be completed by August 15, 2016. Defendants propose that Plaintiffs file their motion for class certification on 5 6 or before September 15, 2016. 7 Defendants propose that their opposition be filed on or before October 31, 8 2016. Plaintiffs’ reply to Defendants’ response to be filed on or before December 9 15, 2016, and that the hearing date be set at the Court’s convenience. 10 E. 11 As to remaining merits issues (i.e., issues that do not overlap with fact issues 12 relevant to Claim I) with respect to Claims II through VII of the Fifth Amended 13 Complaint: (1) 14 the following pre-trial discovery plan: The Parties agree that Initial Disclosures under Rule 26(f) should be 15 16 Discovery completed within 30 days of the Status Conference. Plaintiffs propose: 17 Discovery Motions Deadline: April 29, 2016. 18 Defendants propose: 19 20 Discovery Motions Deadline: July 1, 2016. 21 (2) 22 the following dates for reports and/or disclosures from expert witnesses as per Rule 26(a)(2) of the Federal Rules of Civil Procedure: Plaintiffs propose: 23 24 a) Initial Expert Disclosures: May 27, 2016. 25 b) Rebuttal Expert Disclosures: July 15, 2016. 26 c) Expert Discovery Cut-Off: September 16, 2016. 27 d) Expert Discovery Motions Deadline: October 3, 2016. 28 /// -5- Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 7 of 11 Page ID #:7432 1 Defendants propose: 2 a) Initial Expert Disclosures: September 15, 2016. 3 b) Rebuttal Expert Disclosures: November 7, 2016. 4 c) Expert Discovery Cut-Off: December 19, 2016. 5 d) Expert Discovery Motions Deadline: November 21, 2016. 6 As previously agreed in the Parties’ February 10, 2014 Joint Report on Parties’ 7 Planning Meeting (Dkt. 89), electronically stored information will be produced in 8 accordance with Rule 34 of the Federal Rules of Civil Procedure. Each side 9 reserves the right to request that all electronically stored information be produced 10 in native form, if available, and searchable pdf, if not. Each side requests that all 11 meta-data in electronically stored information be preserved. 12 Procedures for asserting claims of privilege or work product protection, 13 including any claims made after production, shall be in accordance with Rule 14 26(b)(5) of the Federal Rules of Civil Procedure. 15 F. Pre-Trial and Trial Dates 16 Plaintiffs propose: 17 1. Dispositive Motion Cut-Off as to remaining merits issues (i.e., 18 issues that do not overlap with fact issues relevant to Claim I) with 19 respect to Claims II through VII of the Fifth Amended Complaint: 20 December 15, 2016. 21 2. Final Pre-Trial Conference: January 16, 2017. 22 3. Trial as to Remaining Claims: five days following the Final 23 Pre-Trial Conference. 24 Defendants propose: 25 1. Dispositive Motion Cut-Off as to remaining merits issues (i.e., 26 issues that do not overlap with fact issues relevant to Claim I) with 27 respect to Claims II through VII of the Fifth Amended Complaint: 28 April 10, 2017. -6- Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 8 of 11 Page ID #:7433 1 2. Final Pre-Trial Conference: May 15, 2017. 2 3. Trial as to Remaining Claims: five days following the Final 3 Pre-Trial Conference. 4 G. 5 On or before November 9, 2016, Counsel will meet and confer to select a 6 Settlement Procedures settlement procedure pursuant to Civil Local Rules 16-15 and 16-15.9. 7 H. Length of Trial 8 1. Plaintiffs’ Case-in-Chief: seven days. 9 2. Defendants’ Case-in-Chief: seven days. 10 3. The estimated time required for trial: two weeks. 11 4. The case should be ready for trial: 12 I. Trial By Jury or Court 13 Plaintiffs’ Position: Plaintiffs reserve their jury demand. However, 14 Plaintiffs consent to the Court deciding any disputed facts necessary to enter 15 declaratory judgment on Counts I, II and III even though those facts may also be 16 relevant to Counts III through VII, as to which Plaintiffs have reserved their jury 17 demand. 18 Defendants’ Position: Defendants believe that all of Plaintiffs’ claims, 19 except the claims for breach of contract and possibly for money had and received 20 (Claims IV and V), are equitable in nature and tried to the Court. Defendants 21 believe that all matters on Claim I as to which Plaintiffs’ motion were not granted 22 must be tried, and that the trial of such is not limited to the summary judgment 23 record. 24 advance of a jury trying the legal claims and the Court’s resolution of common 25 factual questions binding the trial of the legal claims. Respectfully Submitted, Dated: October 9, 2015 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP By: /s/ Betsy C. Manifold BETSY C. MANIFOLD 26 27 28 Defendants do not object to the Court trying all equitable claims in -7- Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 9 of 11 Page ID #:7434 1 2 3 4 5 6 7 8 9 FRANCIS M. GREGOREK gregorek@whafh.com BETSY C. MANIFOLD manifold@whafh.com RACHELE R. RICKERT rickert@whafh.com MARISA C. LIVESAY livesay@whafh.com 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 18 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP MARK C. RIFKIN (pro hac vice) rifkin@whafh.com JANINE POLLACK (pro hac vice) pollack@whafh.com BETH A. LANDES (pro hac vice) landes@whafh.com 270 Madison Avenue New York, NY 10016 Telephone: 212/545-4600 Facsimile: 212-545-4753 19 Interim Lead Counsel for Plaintiffs 20 RANDALL S. NEWMAN PC RANDALL S. NEWMAN (190547) rsn@randallnewman.net 37 Wall Street, Penthouse D New York, NY 10005 Telephone: 212/797-3737 10 11 12 13 14 15 16 17 21 22 23 24 25 26 27 28 HUNT ORTMANN PALFFY NIEVES DARLING & MAH, INC. ALISON C. GIBBS (257526) gibbs@huntortmann.com OMEL A. NIEVES (134444) -8- Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 10 of 11 Page ID #:7435 nieves@huntortmann.com KATHLYNN E. SMITH (234541) smith@ huntortmann.com 301 North Lake Avenue, 7th Floor Pasadena, CA 91101 Telephone 626/440-5200 Facsimile 626/796-0107 Facsimile: 212/797-3172 1 2 3 4 5 6 DONAHUE GALLAGHER WOODS LLP 7 8 WILLIAM R. HILL (114954) rock@donahue.com ANDREW S. MACKAY (197074) andrew@donahue.com DANIEL J. SCHACHT (259717) daniel@donahue.com 1999 Harrison Street, 25th Floor Oakland, CA 94612-3520 Telephone: 510/451-0544 Facsimile: 510/832-1486 9 10 11 12 13 14 15 16 GLANCY BINKOW & GOLDBERG LLP LIONEL Z. GLANCY (134180) lglancy@glancylaw.com MARC L. GODINO (188669) mgodino@glancylaw.com 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: 310/201-9150 Facsimile: 310/201-9160 17 18 19 20 21 22 23 24 25 26 Attorneys for Plaintiffs MUNGER TOLLES & OLSON LLP Dated: October 9, 2015 By: /s/ Kelly M. Klaus KELLY M. KLAUS 27 28 KELLY M. KLAUS (161091) kelly.klaus@mto.com -9- Case 2:13-cv-04460-GHK-MRW Document 246 Filed 10/09/15 Page 11 of 11 Page ID #:7436 ADAM I. KAPLAN (268182) adam.kaplan@mto.com 560 Mission St., 27th Floor San Francisco, CA 94105 Telephone: 415/512-4000 1 2 3 4 5 10 MUNGER TOLLES & OLSON LLP GLENN D. POMERANTZ (112503) glenn.pomerantz@mto.com MELINDA E. LEMOINE melinda.lemoine@mto.com 355 South Grand Ave., 35th Floor Los Angeles, CA 90071 Telephone: 213/683-9100 11 Attorneys for Defendants 6 7 8 9 12 13 14 DECLARATION REGARDING CONCURRENCE 15 I, BETSY C. MANIFOLD, am the CM/ECF User whose identification 16 login and password are being used to file this JOINT STATUS REPORT 17 PURSUANT TO SEPTEMBER 29, 2015 ORDER (DKT. 245). In compliance 18 with L.R. 5-4.3.4(a)(2)(i), I hereby attest that Kelly M. Klaus has concurred in this 19 filing’s content and has authorized its filing. 20 DATED: October 9, 2015 By: 21 22 23 24 25 26 27 28 WARNER/CHAPPELL:22251.status,report.v4 - 10 - /s/ Betsy C. Manifold BETSY C. MANIFOLD