Case 2:15-cv-03462-RGK-AGR Document 110 Filed 03/02/16 Page 1 of 9 Page ID #:2192

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Francis Malofiy, Esq.

Francis Alexander, LLC
280 N. Providence Rd. | Suite 105
Media, PA 19063
T: (215) 500-1000; F: (215) 500-1005
E: francis@francisalexander.com
Attorney for Plaintiff
Glen L. Kulik, Esq. (SBN 082170)
Kulik Gottesman & Siegel LLP
15303 Ventura Blvd., Suite 1400
Sherman Oaks, CA 91403
T: (310) 557-9200; F: (310) 557-0224
E: gkulik@kgslaw.com
Attorney for Plaintiff

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL SKIDMORE, as Trustee for

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

Hon. R. Gary Klausner

Plaintiff,
PLAINTIFFS EX PARTE
APPLICATION FOR A ONE-WEEK
EXTENSION TO RESPOND TO
SUMMARY JUDGMENT MOTION

v.

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LED ZEPPELIN; JAMES PATRICK

PAGE; ROBERT ANTHONY PLANT;
JOHN PAUL JONES; SUPER HYPE
PUBLISHING, INC.; WARNER MUSIC
GROUP CORP., Parent of
WARNER/CHAPPELL MUSIC, INC.;
ATLANTIC RECORDING
CORPORATION; RHINO
ENTERTAINMENT COMPANY,

[Filed concurrently with Declaration of

Glen L. Kulik and (Proposed) Order]

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Defendants.

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EX PARTE APPLICATION TO MODIFY SCHEDULING ORDER

Case 2:15-cv-03462-RGK-AGR Document 110 Filed 03/02/16 Page 2 of 9 Page ID #:2193

Plaintiff Michael Skidmore, Trustee for the Randy Craig Wolfe Trust, hereby

applies to this Court, ex parte, for a one-week extension to respond to the summary

judgment motion filed by defendants on February 25, 2016. The opposition is

currently due on April 7, 2016. The hearing is currently set for March 28, 2016.

The extension is requested to allow Plaintiff a full and fair opportunity to

respond to the complex summary judgment motion filed in this copyright

infringement motion, in light of the present status of the case.

The Application is based on the accompanying Memorandum of Points and

Authorities; the Declaration of Glen L. Kulik (Kulik Decl.); all records and

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pleadings on file with the Court in this action; and on such further evidence and

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argument as may be presented.

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Pursuant to Local Rule 7-19, on March 1, 2016, Plaintiff provided written

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notice of this ex parte application to Defendants counsel Mr. Anderson and Ms.

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Freeman. Plaintiff asked that they consider stipulating to the relief sought and

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offered to agree that defendants could have an additional week to reply. Mr.

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Anderson responded that defendants would not agree to a stipulation and would

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oppose this application.

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Counsel for Defendants in this case are as follows:

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Lead 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:
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
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Attorney for Defendants James Patrick Page, Robert Anthony Plant and John
Paul Jones:
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

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DATED: March 2, 2016

KULIK GOTTESMAN & SIEGEL LLP

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/s/ Glen L Kulik

Glen L. Kulik
Attorneys for Plaintiff

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EX PARTE APPLICATION TO MODIFY SCHEDULING ORDER

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TABLE OF CONTENTS
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MEMORANDUM OF POINTS AND AUTHORITIES........................................... 1

I.

INTRODUCTION ........................................................................................... 1

II.

LEGAL STANDARD ..................................................................................... 3

III.

GOOD CAUSE EXISTS TO EXTEND THE CASE DEADLINE ................ 4

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TABLE OF AUTHORITIES
Page

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Cases
Federal Deposit Ins. Corp. v. Loube,
134 F.R.D. 270 (N.D. Cal. 1991) ........................................................................... 3
Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604 (9th Cir. 1992) .................................................................................. 3
Rios-Berrios v. I.N.S.,
776 F.2d 859 (9th Cir. 1985) .................................................................................. 3
United States v. 2.61 Acres of Land,
791 F.2d 666 (9th Cir. 1985) .................................................................................. 3
United States v. Flynt,
756 F.2d 1352 (9th Cir. 1985) ................................................................................ 3

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Woods v. Saturn Distribution Corp.,

78 F.3d 424 (9th Cir. 1996) .................................................................................... 3

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Other Authorities
6A Charles A. Wright et al., Federal Practice and Procedure 1522.2
(3d ed. 2010) ........................................................................................................... 3

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Rules
Fed. R. Civ. P. 16(b) .................................................................................................... 3

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EX PARTE APPLICATION TO MODIFY SCHEDULING ORDER

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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

This is a copyright infringement action in which Plaintiff alleges that the song

Stairway to Heaven, written by Defendants James Patrick Page and Robert Anthony

Plant and recorded/performed by the rock group Led Zeppelin, infringes the

copyright of the late Randy Craig Wolfe in his composition entitled Taurus which he

wrote in 1967 while a member of the rock group Spirit. Led Zeppelins first concert

in the United States was as the opening act for Spirit. Thereafter, the two groups

appeared together at a number of concerts and music festivals before Stairway to

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Heaven was written, and Led Zeppelin famously performed one of Spirits songs in

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concert on a regular basis.

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On August 17, 2015, the Court entered a Scheduling Order (Doc. No. 79)

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setting a discovery cutoff date of February 11, 2016 and a deadline to file motions of

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February 25, 2016. The present summary judgment motion was filed by defendants

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on the last possible day and set for hearing on the first possible date affording

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Plaintiff the bare minimum amount of time to respond.

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Although written discovery was served by Plaintiff on October 13, 2015,

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Defendants did not respond in any meaningful way until January. They would not

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produce any documents until the court entered a protective order, which did not

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occur until December 28, 2015. Thereafter, in January, Defendants produced 40,000

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pages of materials which took the entire month of January to review. Further, when

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it was determined that many crucial documents had not been produced, Defendants

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have continued to produce documents right up until the last two weeks. Plaintiff

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contends they still have not produced everything.

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Further, while Defendants initially responded to interrogatories on November

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23, 2015, the responses contained mostly objections. It was not until Defendants

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served supplemental answers to interrogatories on January 5, 2016 that Plaintiff had

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important information that was not disclosed by Defendants in their Initial

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Disclosures or at any other time. Thus, it was not until January 2016 that Plaintiff

had documents and meaningful interrogatory answers from Defendants.

With the documents and information in hand, the entire month of January up

to the discovery cutoff date on February 11, 2016 was consumed with both sides

taking depositions including two separate trips to Europe (Defendants would not

produce the band members for depositions in the United States) and in several

locations all over the United States. At least nine depositions were taken in London,

England; Memphis Tennessee; Boston, Massachusetts; Santa Barbara, California;

and Los Angeles, California between January 7, 2016 and February 10, 2016.

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As if this were not enough, the deadline for expert reports to be served was

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shortly before the discovery cut-off date. Plaintiff produced detailed and complex

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reports from five separate experts located all over the country, and this consumed

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weeks of working with the experts and fighting to get from defendants the

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information and documentation they needed.

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produce any expert reports, claiming that they did not have to produce anything until

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30 days after Plaintiffs reports were produced. Thus, when the current motion was

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filed, Plaintiff did not have the benefit of seeing any expert report from the

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Defendants.

In contrast, Defendants did not

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In sum, Plaintiff has worked persistently and diligently throughout the

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litigation to get this case to trial as soon as possible, against formidable adversaries

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who have unlimited resources whose main strategy has been to delay and make the

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process as burdensome as possible for Plaintiff and his principal attorney, Francis

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Malofiy, part of a two-attorney firm based in Philadelphia.

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Defendants had unlimited time to prepare their summary judgment motion,

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while Plaintiff has been afforded a mere seven (7) business days to respond. Plaintiff

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respectfully requests one additional week to file its opposition so it will have a full

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and fair opportunity to present its best arguments to the court. There are a plethora

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of witnesses and expert witnesses located all over the country in this case, and the
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complexity of the issues and the volume of the evidence is such that Plaintiff

deserves more than the bare minimum amount of time to respond to the pending

complex motion.

II.

LEGAL STANDARD

Good cause exists for Plaintiff's requested extension. Fed. R. Civ. P. 16(b).

Good cause will be found if the schedule cannot reasonably be met despite the

diligence of the party seeking the extension. Johnson v. Mammoth Recreations,

Inc., 975 F.2d 604, 609 (9th Cir. 1992) (quoting the advisory committees notes); 6A

Charles A. Wright et al., Federal Practice and Procedure 1522.2, at 312-19 (3d

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ed. 2010). Although the existence or degree of prejudice to the party opposing the

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modification might supply additional reasons to deny a motion, the focus of the

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inquiry is upon the moving party's reasons for seeking modification. Johnson, 975

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F.2d at 609. As explained below, Plaintiff's diligent efforts satisfy this standard.

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The decision to grant or deny a continuance is committed to the sound

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discretion of the trial court. Woods v. Saturn Distribution Corp., 78 F.3d 424, 427

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(9th Cir. 1996); Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985). In the

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Ninth Circuit, four factors are weighed in order to determine whether the grant or

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denial of a continuance is reasonable: (1) whether the moving party has been diligent

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in readying its case; (2) the usefulness of the requested continuance; (3) the extent to

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which granting the continuance would inconvenience the court, the opposing party

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and the witnesses; and (4) prejudice to the moving party if a continuance is not

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granted. United States v. 2.61 Acres of Land, 791 F.2d 666, 671-72 (9th Cir.

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1985) (per curiam); United States v. Flynt, 756 F.2d 1352, 1359-62 (9th Cir. 1985).

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Generally, the interests of justice are served by granting a continuance of the

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discovery cutoff and trial dates to permit a party adequate time to complete its

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discovery. See, e.g., Federal Deposit Ins. Corp. v. Loube, 134 F.R.D. 270, 274 (N.D.

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Cal. 1991).

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III.

GOOD CAUSE EXISTS TO EXTEND THE CASE DEADLINE

For the foregoing reasons, Plaintiff believes that good cause exists to extend

the deadline by one week for Plaintiff to respond to the pending summary judgment

motion. Plaintiff has been diligent throughout this litigation in the face of serious

gamesmanship played by the Defendants which was designed to delay and

discourage Plaintiff. Defendants had unlimited time to prepare the motion, and

Plaintiff should be afforded more than seven (7) working days to respond. Plaintiff

respectfully requests that its time to oppose the motion be extended from March 7,

2016 to March 14, 2016.

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DATED: March 2, 2016

KULIK GOTTESMAN & SIEGEL LLP

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/s/ Glen L Kulik

Glen L. Kulik
Attorneys for Plaintiff

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EX PARTE APPLICATION TO MODIFY SCHEDULING ORDER