-PAL Corbello v. DeVito, No. 2:2008cv00867 - Document 653 (D. Nev. 2011)
Court Description: ORDER Granting 588 Motion to Extend Time. Response to 548 Motion due by 9/9/2011. Signed by Chief Judge Robert C. Jones on 10/27/2011. (Copies have been distributed pursuant to the NEF - SLR)
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-PAL Corbello v. DeVito Doc. 653 1 Gregory H. Guillot, Admitted pro hac vice ggmark@radix.net 2 GREGORY H. GUILLOT, P.C. 13455 Noel Road, Suite 1000 3 Dallas, TX 75240 Phone: (972) 774-4560 4 Fax: (214) 515-0411 5 John L. Krieger, Nevada Bar No. 6023 JKrieger@LRLaw.com 6 LEWIS AND ROCA LLP 3993 Howard Hughes Parkway, Suite 600 7 Las Vegas, NV 89169 Phone: (702) 949-8200 8 Fax: (702) 949-8389 9 George L. Paul, Admitted pro hac vice GPaul@LRLaw.com 10 Robert H. McKirgan, Admitted pro hac vice RMckirgan@LRLaw.com 11 LEWIS AND ROCA LLP 40 North Central Avenue, Suite 1900 12 Phoenix, AZ 85004 Phone: (602) 262-5326 13 Fax: (602) 734-3857 14 Attorneys for Plaintiff, DONNA CORBELLO 15 16 UNITED STATES DISTRICT COURT 17 DISTRICT OF NEVADA 18 DONNA CORBELLO, an individual, Case No. 2:08-cv-00867-RCJ-PAL Plaintiff, 19 20 ORDER PLAINTIFF’S MOTION FOR AN EXTENSION OF TIME FOR OPPOSITION TO MOTION BY DEFENDANTS VALLI, GAUDIO, DSHT, INC., DODGER THEATRICALS, LTD., AND JERSEY BOYS BROADWAY LIMITED PARTNERSHIP FOR PARTIAL SUMMARY JUDGMENT AS TO COUNTS 13 AND 14 OF THE THIRD AMENDED COMPLAINT vs. 21 THOMAS GAETANO DEVITO, an individual, et al., 22 Defendants. 23 24 25 (Fourth Request) 26 27 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109 1 2449484.1 Dockets.Justia.com 1 Plaintiff Donna Corbello, by her attorneys, and pursuant to LR 6-1 and 7-2, herewith 2 requests a further extension of time, through Friday, September 9, 2011, in which to file her 3 opposition to the Motion By Defendants Valli, Gaudio, DSHT, Inc., Dodger Theatricals, Ltd., 4 and Jersey Boys Broadway Limited Partnership for Partial Summary Judgment As To Counts 13 5 And 14 of The Third Amended Complaint (Doc. 548). Whereas Plaintiff has previously 6 requested an extension of time through Tuesday, September 6, 2011, the additional requested 7 extension would continue that deadline by three days. This is Plaintiff’s fourth request for an 8 extension of time. 9 Plaintiff submits that good cause exists for grant of the extension requested. Since the 10 time her previous request for an extension was filed, Plaintiff’s lead counsel has worked around 11 the clock in an attempt to complete her response, particularly given defense counsel’s lengthy, 12 acrimonious opposition to Plaintiff’s prior extension request. In fact, Plaintiff’s counsel worked 13 each day and night over the Labor Day weekend in an effort to ensure that her response could be 14 completed by today. However, notwithstanding this diligence, the opposition brief is not yet 15 complete; cannot be completed today, and will not be completed by tomorrow, due to the need, 16 once principal drafting is completed, to cross-reference the citations to the record in her 17 substantive brief, with the Exhibits attached to her Separate Statement of Facts . 18 As also previously reported, the matters raised in the New Defendants’ Motion present a 19 number of issues of first impression, and not all of these issues are adequately treated, or even 20 addressed, in Defendants’ Motion itself. For example, Defendant’s Motion is completely silent 21 regarding the Ninth Circuit’s decision in Gardner v. Nike, 279 F.3d 774 (9th Cir. 2002), and the 22 potential impact of its preservation of vestiges of the doctrine of indivisibility from the 1909 23 Copyright Act, on Plaintiff’s current accounting claims. The Motion also ignores Count 12 of 24 the Third Amended Complaint (Doc. 457), which includes an alternate scenario for the 25 disposition of these claims, which must be resolved in conjunction with the claims set forth in 26 Counts 13 and 14, as the resolution of these claims will necessarily dispose of the alternate claim 27 presented in Count 12. Defendant’s Motion also fails to mention that the same vestiges of this 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109 2 2449484.1 1 indivisibility doctrine which supply the underpinnings for the Ninth Circuit’s decision in 2 Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008), apply primarily to a 3 party’s standing to sue for infringement, and are not controlling on matters involving whether a 4 substantive assignment of copyright ownership has occurred.1 No reported case has previously 5 applied the subject principles in Gardner or Sybersound to factual circumstances precisely 6 analogous to those presented in this case, and Plaintiff’s opposition involves considerable effort 7 and scholarship in order to properly identify and discuss the principles that should control 8 Plaintiff’s accounting claims, particularly given that the assignment agreements, and memoranda 9 of assignment relevant to Counts 12, 13, and 14 of the Third Amended Complaint, are governed 10 primarily by New York law, rather than federal law, as represented in Defendants’ brief. 11 Finally, whereas, Plaintiff submits that most of the relevant issues may be resolved as a matter of 12 law, and that Defendants’ extrinsic, parol evidence, is impermissible, given the admitted lack of 13 ambiguity in the underlying agreements, Plaintiff is cross-moving for summary judgment on 14 Counts 13, 14, and portions of Count 12, contemporaneously with her response to Defendants’ 15 Motion. Plaintiff submits this will expedite the final resolution of several claims in her Third 16 Amended Complaint, and narrow, substantially, the issues to be resolved at trial. For all of these 17 reasons, Plaintiff submits that “good cause” exists for the relief requested. Fed. R. Civ. P. 6(b)(1) provides: “(1) In General. When an act may or must be done 18 19 within a specified time, the court may, for good cause, extend the time: (A) with or without 20 motion or notice if the court acts, or if a request is made, before the original time or its extension 21 expires; or (B) on motion made after the time has expired if the party failed to act because of 22 excusable neglect.” Id. “Good cause" is a non-rigorous standard that has been construed broadly 23 across procedural and statutory contexts. See, e.g., Venegas-Hernandez v. Sonolux Records, 370 24 F.3d 183, 187 (1st Cir. 2004); Thomas v. Brennan, 961 F.2d 612, 619 (7th Cir. 1992); Lolatchy v. 25 Arthur Murray, Inc., 816 F.2d 951, 954 (4th Cir. 1987). It is well-established that the rule, “[is] 26 1 In fact, on August 19, 2011, the Ninth Circuit released a new decision which clarifies Sybersound, and will be 27 mentioned in Plaintiff’s response. See Fleischer Studios, Inc. v. A.V.E.L.A., Inc., No. 2:10-cv-00557, 2011 U.S. App. 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109 LEXIS 17220, 10-13 (9th Cir. Aug. 19, 2011) 3 2449484.1 1 to be liberally construed to effectuate the general purpose of seeing that cases are tried on the 2 merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (quoting Staren v. American Nat'l 3 Bank & Trust Co. of Chicago, 529 F.2d 1257, 1263 (7th Cir. 1976)). See also Fed. R. Civ. P. 1 4 ("[The Federal Rules] should be construed and administered to secure the just, speedy, and 5 inexpensive determination of every action and proceeding."). Consequently, requests for 6 extensions of time made before the applicable deadline has passed should “normally . . . be 7 granted in the absence of bad faith or prejudice to the adverse party.” Ahanchian v. Xenon 8 Pictures, Inc., 624 F.3d 1253, 1258-1259 (9th Cir. Cal. 2010) (citing 4B Charles Alan Wright & 9 Arthur R. Miller, Federal Practice and Procedure § 1165 (3d ed. 2004)). In the absence of such 10 bad faith or prejudice, a Court’s refusal to grant an extension request governed by the “good 11 cause” standard can constitute an abuse of discretion. E.g., Ahanchian, 624 F.3d at 1258. 12 Critically, the record is devoid of any indication either that Plaintiff’s counsel have acted 13 in bad faith or that an extension of time would prejudice defendants. To the contrary, the record 14 reflects that Plaintiff’s counsel have acted conscientiously throughout this litigation, promptly 15 seeking extensions of time as soon as they are known to be necessary, without allowing 16 applicable deadlines to first pass, and stipulating to Defendants’ various requests for extensions 17 of time without fail. This is not a situation in which Plaintiff has simply disregarded, or missed, 18 a deadline to file a response, without first notifying the Court that additional time was needed. In 19 such circumstances, Plaintiff’s request would be governed by the more stringent “excusable 20 neglect” standard, rather than simply requiring a showing of “good cause,” and even the 21 “excusable neglect” standard is less stringent than that which the New Defendants would prefer 22 to apply here, in an effort to place Plaintiff in a position of default, with respect to her accounting 23 claims. See, e.g., Kelley v. Allen, No. 2:10-cv-00557, 2011 U.S. Dist. LEXIS 84741 (E.D. Cal. 24 Aug. 1, 2011). See also, Bateman v. United States Postal Serv., 231 F.3d 1220, 1225 (9th Cir. 25 2000) (stating a delay of “a little more than one month” is "not long enough to justify denying 26 relief[,]" under the “excusable neglect standard, even though Plaintiff's attorney "should have 27 responded more quickly," and his reason for the delay – “recovery from jet lag and the time it 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109 4 2449484.1 1 took to sort through the mail that had accumulated while he was away” was “admittedly [] 2 weak”). Under that more stringent standard, the Bateman Court found no excusable neglect, 3 because there was no evidence that Plaintiff’s attorney acted with anything less than good faith. 4 Id. Instead, “his errors resulted from negligence and carelessness, not from deviousness or 5 willfulness." Id. But that standard does not govern the present circumstances, and Plaintiff’s 6 counsel have neither been negligent nor careless. Instead, notwithstanding a Herculean effort 7 since the date the previous extension request was filed, they simply have not yet completed the 8 brief. 9 Finally, any argument that Defendants would be prejudiced by having less time to reply 10 than Plaintiff has had to draft her opposition, is an argument that has previously been found 11 “unpersuasive,” as it neglects the fact that, in the majority of districts, more time is given for 12 drafting oppositions than replies. See Ahanchian, 624 F.3d at 1258 (citing N.D. Cal. Local R. 713 3(a), (c); S.D. Cal. Local R. 7.1(e)(1), (2)). See also, LR 7-2(b), (c). Moreover, as explained in 14 her previous extension request, Plaintiff’s counsel have not expended all of the time that has 15 passed working on Plaintiff’s response to Defendants’ Motion, due to the other, major deadlines 16 in this case throughout July and August, as well as lead counsel’s significant obligations to other 17 clients during the last week in August. Whereas, Plaintiff’s opposition will include a cross18 motion, New Defendants will likely also need additional time in which to reply/oppose, and 19 Plaintiff, as always, will accommodate their requests. The fact is, that if defense counsel were 20 cooperative with respect to Plaintiff’s reasonable, recent extension requests, and willing to 21 extend the customary professional courtesies, Plaintiff’s counsel may have been able to complete 22 her response by now – the needless, and needlessly contentious battles over whether a two-day 23 extension should be granted consume considerable, valuable time that could best be expended by 24 completing the brief. It is a litigation tactic, transparently intended to deprive Plaintiff of the 25 opportunity to respond substantively to an important motion, rather than a sincere expression of 26 concern regarding the impact of the scant additional time requested for that response. 27 In sum, the requested extension is sorely needed, and, as stated above, is not requested 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109 5 2449484.1 1 for any improper purpose. 2 IN VIEW OF THE ABOVE, Plaintiff respectfully requests entry of the attached Order, 3 indicating that she may file and serve her Opposition to (Doc 548) on or before September 9, 4 2011. 5 Dated: September 6, 2011 RESPECTFULLY SUBMITTED: 6 7 8 9 10 11 By: /s/ Gregory H. Guillot__ Gregory H. Guillot George L. Paul John L. Krieger Robert H. McKirgan Attorneys for Plaintiff, Donna Corbello IT IS SO ORDERED: SO ORDERED: DER 12 13 14 15 __________________________________ _ ________________________________ __ The T Honorable Robert The Honorable Robert C. Jones a e STATES UNITED STATES DISTRICT JUDGE ATE Dated: 10-27-2011 D d ____________________________ 10 27 2011 16 17 18 19 20 21 22 23 24 25 26 27 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109 6 2449484.1
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