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Kaserberg v. Conaco, LLC

United States District Court, S.D. California

July 25, 2017

ROBERT ALEXANDER KASEBERG, Plaintiff,
v.
CONACO, LLC, et al., Defendants.

          ORDER REGARDING JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE RE MODIFYING THE SCHEDULING ORDER TO REOPEN DISCOVERY AND PERMIT THE DEPOSITION OF PLAINTIFF'S COUNSEL (ECF No. 132)

          LOUISA S PORTER UNITED STATES MAGISTRATE JUDGE.

         On June 28, 2017, the parties filed a Joint Motion for Determination of Discovery Dispute Re: Modifying the Scheduling Order to Reopen Discovery and Permit the Deposition of Plaintiff's Counsel. (ECF No. 132.) In the Joint Motion, Defendants Conaco, LLC, Turner Broadcasting System, Inc., Time Warner, Inc., Conan O'Brien, Jeff Ross, and Mike Sweeney (collectively, “Defendants”) seek to (1) modify the Scheduling Order and reopen discovery for a period of sixty days, and (2) take the deposition of Jayson Lorenzo, counsel for Plaintiff Robert Alexander Kaseberg (“Plaintiff”).

         After careful consideration of the papers submitted, the Court ORDERS that a telephonic, attorneys only Discovery Conference shall be held, as set forth below.

         I. BACKGROUND

         A. First Amended Complaint

         Plaintiff commenced this copyright infringement action on July 22, 2015. (ECF No. 1.) Plaintiff filed a First Amended Complaint (“FAC”) against Defendants on October 3, 2016. (ECF No. 58.) Plaintiff alleges he is a comedic writer engaged in the entertainment industry. (Id. at ¶ 14.) Plaintiff alleges that after he wrote and published five jokes on his personal online blog and/or Twitter account between December 2, 2014 and June 9, 2015, each joke was subsequently featured in the monologue segment of the “Conan” show. (Id. at ¶¶ 15-24.) These jokes, in order of date of alleged infringement, are (1) the “UAB Joke;” (2) the “Delta Joke;” (3) the “Tom Brady Joke;” (4) the “Washington Monument Joke;” and (5) the “Jenner Joke.” (See id.)

         Plaintiff alleges he filed copyright applications for each of the jokes at issue, deeming them “literary works, ” with the United States Copyright Office. (Id. at ¶ 26.) He further alleges these applications are pending. (Id.) Plaintiff seeks a permanent injunction, actual damages, statutory damages, increased statutory damages for willful infringement, and profits attributable to the infringement of Plaintiff's copyrights pursuant to 17 U.S.C. §§ 502(a) and 504. (Id. at pp. 6-8.) Plaintiff also seeks attorney's fees and costs and punitive damages. (Id. at p. 7.)

         B. Answer

         On October 17, 2016, Defendants filed an Answer to the FAC. (ECF No. 59.) Defendants assert eight affirmative defenses and reserve additional defenses. (Id. at pp. 5-6.) The affirmative defenses include: (1) failure to state a claim; (2) lack of copyrightable subject matter; (3) copyright non-infringement; (4) independent creation; (5) lack of originality; (6) fair use; (7) no willfulness; and (8) improper venue. (Id.)

         C. Motion for Summary Judgment

         On February 3, 2017, Defendants filed a Motion for Summary Judgment and/or Partial Summary Judgment. (ECF No. 70.) Defendants moved for summary judgment, in part, on the Tom Brady Joke and the UAB Joke on the basis that Plaintiff failed to register these jokes. (ECF No. 70-1 at pp. 8-9.) Defendants argued that a party “cannot litigate an infringement claim until it has at least filed an application to register the allegedly infringed copyrights.” (Id. at p. 9.) Based on Plaintiff's discovery responses, Defendants argued that Plaintiff “failed to produce any evidence proving that he registered the Tom Brady Joke and the UAB Joke, which were first published on February 3, 2015 and December 3, 2014, respectively.” (Id.) Defendants asserted the Copyright Office's records are consistent with Plaintiff's production. (Id.) Thus, Defendants argued Plaintiff's claims as to the Tom Brady Joke and the UAB Joke must be dismissed for lack of standing. (Id.)

         In his opposition, filed on February 24, 2017, Plaintiff asserted that he had submitted applications to the Copyright Office for all of the jokes at issue, including the Tom Brady and UAB Jokes, but that the applications for the Tom Brady Joke and the UAB Joke were currently pending. (ECF No. 97 at pp. 6-7.) Plaintiff represented that he sent an application for the UAB Joke on December 2, 2014, and that he sent applications for the Tom Brady Joke on September 3, 2015 and August 10, 2016, but they all remain pending. (Id.) Plaintiff argued that because he had submitted the applications, he has standing to proceed on these jokes. (Id.)

         In their Reply, dated March 10, 2017, Defendants argued that they did not receive Plaintiff's copyright applications for the Tom Brady Joke and the UAB Joke until February 8, 2017. (ECF No. 106 at pp. 1-2.) Defendants argued the late disclosure were not harmless because the UAB Joke application appeared to be invalid, and Plaintiff failed to explain why he produced two different applications for the Tom Brady Joke. (Id. at p. 2.)

         In supplemental briefing following oral argument, the parties addressed whether Plaintiff's failure to produce the applications was substantially justified or harmless, or whether such evidence should be excluded, under Federal Rule of Civil Procedure 37. (ECF Nos. 124, 126, 127.)

         In the Honorable Janis L. Sammartino's Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment, dated May 12, 2017, she addressed the issue in detail. (ECF No. 131.) Judge Sammartino held “there is no question that Plaintiff failed to timely produce the required disclosures, ” but ultimately found the failure “harmless” within the meaning of Federal Rule of Civil Procedure 37(c). (Id. at pp. 8-9.) Although Defendants could have conducted discovery that invalidates the applications if the applications were produced in a timely manner, Judge Sammartino found the fact remains that “Plaintiff did, in fact, submit applications which in turn confer Plaintiff with standing for the relevant jokes.” (Id. at p. 9.) Because she found the failure to disclose harmless insofar as it relates to standing to bring suit, Judge Sammartino denied Defendants' summary judgment motion on this ground. (Id. at p. 10.)

         However, Judge Sammartino added that “Defendants are correct that they should be permitted to reopen discovery regarding the relevant applications, associated documents, and communications from the Copyright Office. Further, if Defendants discover fatal deficiencies in Plaintiff's applications then Defendants should also again be permitted to move for Summary Judgment on those discrete grounds.” (Id. at pp. 9-10.) Judge Sammartino instructed the parties to meet and confer regarding these issues, and “if possible, ” submit a joint motion to reopen discovery and modify the operative pre-trial schedule. (Id. at p. 10.)

         Ultimately, Judge Sammartino granted summary judgment in favor of Defendants on the UAB Joke and the Delta Joke. (Id. at p. 28.) Summary judgment was granted as to the UAB Joke on grounds unrelated to registration with the Copyright Office. (Id. at pp. 22-23.) Judge Sammartino did not, however, grant summary judgment as to the Tom Brady Joke.

         D. Scheduling Order

         On July 7, 2017, Defendants filed an Ex Parte Motion to Continue Pretrial Deadlines Pending Resolution of the Parties' Joint Motion. (ECF No. 134.) On July 10, 2017, Judge Sammartino granted the Ex Parte Motion and vacated all current pretrial deadlines. (ECF No. 136; see also ECF No. 138.) Judge Sammartino will reset the pretrial deadlines after the present motion is resolved. (Id. at p. 2.)

         E. Meet and Confer Efforts

         The parties met and conferred extensively on the present issue before the Court. (See ECF No. 132-1, Declaration of Nicholas Huskins (“Huskins Decl.”); ECF No. 132-2, Declaration of Jayson M. Lorenzo (“Lorenzo Decl.”).) After reviewing the submissions by the parties, the Court notes the following key dates in the history of this issue:

. March 10, 2015: Plaintiff submitted a Standard application to the Copyright Office for the Delta Joke, but included screenshots from Plaintiffs blog of the Delta Joke, the Tom Brady Joke, and the Washington Monument Joke. ...

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