COME NOW the defendants, F.A.C.T.Net, Inc., and Lawrence Wollersheim, by and
through their counsel of record, BEEM & MANN, P.C., and submit the following
memorandum of points and authorities in support of their motion for continuance
pursuant to Rule 56(f) of the Federal Rules of Civil Procedure:
I. INTRODUCTION
Plaintiff Bridge Publications, Inc.'s ("BPI") Motion For Summary
Judgment Against All Defendants For Copyright Infringement (the "
Motion")
is still premature in that Defendants have been prevented and/or have not yet
had the opportunity to discover information vital to Defendants' opposition to
BPI's Motion. Specifically, Defendants have meritorious defenses to BPI's Motion
including, inter alia, (i) the invalidity of BPI's copyrights; (ii) Defendants
were previously discharged by BPI from any claims of copyright infringement in
the instant action pursuant to a valid release obtained in a previous action;
(iii) the actual number of the various works at issue in this case is only
thirteen
and not "1900" as alleged by BPI; and (iv) many of the works at issue
in BPI's Motion were uploaded and/or "planted" on Defendants' Bulletin
Board System by entities and/or individuals other than F.A.C.T.Net and without
F.A.C.T.Net's knowledge and/or consent.
These defenses all create triable issues of fact which will likely preclude
BPI's Motion. Without the opportunity to further discover this information,
Defendants'
ability to put on their case and oppose BPI's Motion is severely compromised.
Accordingly, Defendants respectfully request that the Court grant them a
continuance
of time, to and including April 6, 1997, in which to oppose BPI's Motion.
II. STANDARD FOR OBTAINING A RULE 56(f) CONTINUANCE
Rule 56(f) of the Federal Rules of Civil Procedure provides that:
Should it appear from the affidavits of the party opposing the motion that
the party cannot for reasons stated present by affidavit facts essential to
justify
the party's opposition, the court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained or depositions to be
taken
or discovery to be had or may make such other order as is just.
The policy behind Fed.R.Civ.P. 56(f) is straightforward: "Summary
judgment
should not be granted `where the non-moving party has not had the opportunity
to discover information that is essential to his opposition.'" Committee
for the First Amendment v. Campbell, 962 F.2d 1517, 1521-22 (10th Cir. 1992)
(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). "The
protection
afforded by Rule 56(f) is an alternative to a response in opposition to summary
judgment under 56(e) and is designed to safeguard against a premature or
improvident
grant of summary judgment." Pasternak v. Lear Petroleum Exploration, Inc.,
790 F.2d 828, 833 (10th Cir. 1986) (quoting 10A Wright, Miller, & Kane,
Federal
Practice and Procedure §2740 (1983)). See, Miller v. United States
Department
of Transportation, 710 F.2d 656, 666 (10th Cir. 1983) ("[D]iscovery is
strongly
favored and generally denying the right to have full discovery on all pertinent
issues before a summary judgment is granted would be error, particularly in the
face of a Rule 56(f) affidavit.")
Consistent with its underlying policy, courts treat Rule 56(f) motions and
affidavits liberally: "`Unless dilatory or lacking in merit, the motion
should
be liberally treated.'" Committee for the First Amendment v. Campbell, 962
F.2d 1517, 1521-22 (quoting James W. Moore & Jeremy C. Wicker, Moore's
Federal
Practice ¶ 56.24 (1988)). See, Jensen v. Redev. Agency, 998 F.2d 1550, 1554
(10th Cir. 1993); RTC Mortgage Trust 1994-S3 v. Guadalupe Plaza, 918 F.Supp.
1441,
1448 (D.N.M. 1996).
More specifically, in order to invoke the shelter provided by Rule 56(f), a
party must (1) file an affidavit, Pasternak, 790 F.2d at 832-33, (2) identifying
the probable facts not available and their relevance, Committee for the First
Amendment v. Campbell, 962 F.2d at 1522, (3) explaining "why facts
precluding
summary judgment cannot be presented...," Id., and (4) stat[ing] with
specificity
how the desired time would enable the non-moving party to meet its burden in
opposing
summary judgment...," Jensen, 998 F.2d at 1554 (citation omitted).
III. FURTHER DISCOVERY IS VITAL TO DEFENDANTS'
OPPOSITION TO BPI'S MOTION
For the reasons stated below, Defendants are entitled to further discover
certain
information vital to Defendants' opposition to BPI's Motion. Specifically,
Defendants
should be allowed to further discover information pertaining to (i) when and
whether
the works at issue were published; (ii) the identity of the authors of the
various
works; (iii) the circumstances and procedures surrounding the purported
copyrighting
of any of the various works at issue; and (iv) the circumstances surrounding the
assignment and transfers of rights and claims by any and all persons, in
connection
with any of the various works at issue, including L. Ron Hubbard's purported
assignment
of the various works at issue; (v) BPI's previous release of Defendants from the
conduct alleged in BPI's Motion; (vi) the actual number of the various works at
issue; (vii) how the allegedly infringing works were uploaded on to Defendants'
Bulletin Board System in the first place; and (viii) the fact of, and extent of,
revisions being made to any of the various works at issue. Because this
information
all raises genuine issues of material fact, it is essential to justify Defendants
opposition to BPI's Motion.
A. Defendants Are Entitled To Further Discover Facts
Demonstrating The Invalidity Of BPI's Copyrights.
BPI alleges in its Motion that it has valid copyrights in the works at issue.
In support thereof, BPI attaches certificates of registration for each of the
works at issue. Although generally such certificates constitute prima facie proof
of validity and ownership of the copyrights, Defendants assert that this
presumption
does not apply to the case at hand where there are triable issues of fact as to
(i) when and whether these works were published; (ii) the identity of the author
of these works; (iii) the circumstances and procedures surrounding the purported
copyrighting of any of the various works at issue; and (iv) the circumstances
and procedures surrounding the purported copyrighting of any of the various works
at issue; and the circumstances surrounding the assignment and transfers of
rights
and claims by any and all persons, in connection with any of the various works
at issue, including the circumstances surrounding L. Ron Hubbard's purported
assignment
of the works at issue. Further discovery of such facts is relevant to Defendants'
showing that BPI has not met its burden of proving that it has valid copyrights
and, thus, that BPI cannot maintain a claim for copyright infringement against
Defendants. Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823, 831
(10th Cir. 1993).
1. Defendants Are Entitled To Further Discover When
And Whether The Works At Issue Were Published.
In order for the statutory presumption of validity to adhere, a work must be
registered within five years of its initial publication. 17 U.S.C. §410(c).
Several of the copyright certificates of registrations which BPI submits with
its Motion clearly demonstrate that these works were published much more than
five years before, and often were published decades before, their belated
registration.
Insofar as the remaining registrations are concerned, however, these
registrations
purport to have been published within this five year period of limitations. As
a result, by further inquiring into the dates of publication stated in each such
registration, Defendants are likely to establish that such dates are, in fact,
false, thereby invalidating BPI's copyrights in these works.
Although Defendants have requested and BPI has promised on several occasions
to provide Defendants with information detailing where and when each such work
was published, Defendants have failed to do so to date.
In connection with this inquiry, Defendants intend to depose, among others,
David Miscavige. (Berry Decl., ¶ 8).
2. Defendants Are Entitled To Further Discover The
Identity
Of The Author(s) Of The Various Works At Issue.
In the case at hand, credible evidence suggests that some or all of the works
at issue were not authored by L. Ron Hubbard, as avowed by BPI in its Motion,
but were, in fact, authored by such other individuals as David Mayo and Gerald
Armstrong. (Berry Decl., ¶ 8). For example, Vicki J. Aznaran, a former
president
of the Religious Technology Center ("RTC") testified in another matter
that RTC made a practice of claiming that materials it submitted to the Copyright
Office for registration were authored by L. Ron Hubbard when, in fact, RTC knew
that those materials were authored by someone else. Since "copyright in a
work ... vests initially in the author or authors of the work," 17 U.S.C.
§201(a), whether L. Ron Hubbard actually authored the "1900" works
at issue is again directly relevant to the validity of the copyrights in these
works. This is because Mr. Hubbard would have had to have owned the works at
issue
in order for any assignment by Mr. Hubbard or his estate to RTC to be valid as
to those works. Consequently, if Mr. Hubbard's assignment to RTC is invalid, then
RTC's subsequent assignment of these works to BPI is also invalid. Thus, BPI
would
have no rights in and to the works at issue and no standing to bring BPI's
present
Motion.
F.A.C.T.Net demanded production from RTC of all documents related to David
Mayo's allegations that he is the author of certain works that RTC contends were
authored by L. Ron Hubbard. In Plaintiff's Response to Defendant F.A.C.T.Net's
First Request for Production of Documents, RTC objected to the relevance of the
request and offered to produce instead an opinion in an unspecified case
concerning
Mayo's claims, but otherwise failed to comply with the request. (Berry Decl.,
¶ 10.)
F.A.C.T.Net also demanded the production of all documents related to the
litigation
in England involving Ran Lolly and works in which RTC purports to own or hold
rights. Again, in the same discovery response, RTC objected to the request on
the basis of relevance and has failed to produce the documents. Decl. of Berry,
¶ 10.
In connection with this inquiry, Defendants intend to depose, among others,
David Mayo, Vicki Aznaran, Gerry Armstrong , Earl Cooley, Esq., Sherman Lensk,
Esq., San Luis Obispo Coroner, the person most knowledgeable of the Church of
Spiritual Technology, and Michael Sutter. (Berry Decl., ¶¶ 8, 9f, 9g,
9o, 9q, 9r, and 9t).
3. Defendants Are Entitled To Further Discover The
Circumstances
And Procedures Surrounding The Purported Copyrighting Of Any Of The Various Works
At Issue.
In reviewing the copyright certificates of registration BPI attached to its
Motion, it has become apparent that the circumstances and procedures surrounding
the purported copyrighting of any of the various works at issue are suspect.
Indeed
nearly all of the certificates were filled out many years after the purported
date of creation of the works. As such, Defendants are of the belief that these
certificates were likely filled out by individuals who had no personal knowledge
of the information contained in the certificates. Defendants should be permitted
to further discover whether Defendants' hypothesis is, in fact, correct. This
is because on the certificate of copyright registration itself, the individual
filling out the certificate must certify at the bottom of the certificate that
the statements made by him or her are true to the best of his or her knowledge.
This implies that a person must have at least some personal knowledge of the
facts
contained in the certificate. Thus, any certificate which was executed by an
individual
without personal knowledge of the facts contained therein is invalid.
Defendants received these copyright certificates of registration for the first
time when BPI filed its motion. Given the voluminous nature of the registrations,
totalling 1900 in all, Defendants need more time to further discover into this
issue.
In connection with this inquiry, Defendants intend to depose, among others,
David Miscavige, Mary Sue Hubbard, Patricia Brice, Lyman Spurlock, and Paul
Klopper.
(Berry Decl., ¶¶ 9b, 9c, 9j, 9n, and 9s).
4. Defendants Are Entitled To Further Discover The
Circumstances
Surrounding The Assignment And Transfers Of Rights And Claims In Connection With
Any Of The Various Works At Issue.
Even assuming, arguendo, that the works at issue were properly published,
authored
and copyrighted by L. Ron Hubbard, there is still evidence to suggest that the
circumstances surrounding the assignment and transfers of rights and claims by
any and all persons, in connection with any of the various works in issue were
erroneous. With respect to L. Ron Hubbard's initial assignment of the copyrights
to RTC, this is because at the time Mr. Hubbard's signature on the assignment
document was notarized by David Miscavige, Mr. Hubbard was a wanted fugitive
under
a Federal indictment. Mr. Miscavige, by virtue of his position and affiliation
with Mr. Hubbard, likely knew or had reason to know that Mr. Hubbard was a wanted
fugitive.
In the State of California, as in all other states, if a notary public has
prior, present or percipient knowledge that the person whose signature they are
notarizing is a wanted fugitive under Federal law, the notary is duty bound to
report such fugitive to authorities and not to notarize the signature of such
fugitive. Thus, if borne out by further discovery, such information would
presumably
establish that Mr. Hubbard's assignment of copyrights to RTC is illegal, as it
was improperly notarized. Consequently, any subsequent assignment by RTC to BPI
of such copyrights would also be invalid, thereby precluding BPI's Motion against
Defendants.
F.A.C.T.Net's First Request for Production of Documents propounded upon BPI
included a request for original copies of all documents related to the transfer
of any copyrights of the published works. The request specifically indicated the
need for original documents so that they could be examined by an expert in the
authenticity of documents and signatures.
BPI failed to produce the documentation, stating that (a) "copies"
of the documents had already been produced and (b) the demand was irrelevant.
See, BPI's Response to F.A.C.T.Net's First Request for Production of Documents,
Exh. E; Berry Decl., ¶ 11.
In connection with this inquiry Defendants intend to depose David Miscavige,
Pat Broker, Vicki Aznaran, Mary Sue Hubbard, Earl Cooley, Esq., Sherman Lensk,
Esq., and the San Luis Obispo Coroner, and the person most knowledgeable of the
Church of Spiritual Technology. (Berry Decl., ¶¶ 9a, 9d, 9g, 9n, 9q,
and 9r).
B. Defendants Are
Entitled To
Further Discover
Information Pertaining To BPI's Previous Release Of Defendants From The Conduct
Alleged In BPI's Motion.
In settlement of a previous action entitled Church of Scientology
International
v. Steven Fishman and Uwe Geertz, United States District Court, Central District
of California, Case No. CV 91-6426 HLH (Tx) (the "Previous Action"),
the Church of Scientology International ("CSI") signed a release which
arguably bars them altogether from suing Defendants for the claims alleged in
the present action. Significantly, the release runs to all "agents"
of Lewis, D'Amato, Brisbois & Bisgaard ("LDB&B"), the law firm
which represented the Defendants in the Previous Action.
It should be emphasized that in this Previous Action, Defendants were, in
fact,
paid research and consulting agents to LDB&B. Indeed, to assist with
Defendants'
research in the Previous Action, LDB&B sent Defendants three CD's and
approximately
60,000 pages of hard copy material. Notably, all purported instances of
infringement
that are alleged by BPI in the current action relate either directly or
indirectly
to the research Defendants performed for LDB&B in the Previous Action.
Because
the release in the Previous Action may very well bar BPI's claims against
Defendants
in the instant action, Defendants should be allowed to further discover
information
pertaining to this release including, inter alia, the circumstances surrounding
the execution of the release, the enforceability of the release and its scope,
and the content of the agreement between LDB&B and CSI.
In connection with this inquiry, Defendants intend to depose, among others,
Elliot Abelson, Esq., William T. Drescher, Esq., Robert F. Lewis, Esq., Janet
Lubert, Esq., and Gordon Calhoun, Esq. (Berry Decl., ¶ 9v).
C. Defendants Are Entitled To Further Discover
The Actual
Number Of Works At Issue.
BPI maintains in its Motion that Defendants have purportedly infringed the
copyrights in "1900" works. Defendants, however, have reason to believe
that BPI has purposefully and with the intention of deceiving the Court grossly
inflated the amount of works at issue and that the actual number of works is far
fewer than "1900". Defendants surmise that BPI has arrived at this
"1900"
number by separately registering portions of many of the published literary works
as independent copyrights. Moreover, Defendants posit that the true number of
works at issue in BPI's Motion is thirteen (13), consisting of 13 of 22 volumes
comprising two series of Scientology "technology."
Defendants' ability to conclusively demonstrate the precise number of works
at issue is directly relevant to the issue of damages in this case since BPI
seeks
statutory damages which are awarded per work infringed. Thus, in the unlikely
event that Defendants are ultimately found liable for any acts of infringement,
the difference between 13 works and 1900 works could potentially translate into
hundreds of millions of dollars in damages, a result which cannot easily be
ignored.
Defendants previously demanded information pertaining to the form in which
the subject works are published in Request Nos. 14 and 23 of Defendant
F.A.C.T.NET,
Inc.'s First Set Of Interrogatories To Plaintiff Bridge Publications, Inc., which
were served on BPI on or about March 1, 1996. Other than the registrations
already
provided, however, BPI has refused to produce additional information responsive
to these requests. Moreover, such information was also promised informally by
BPI in a letter from Helena Kobrin to Graham Berry. Once again, BPI has refused
to provide such information to Defendants.
In connection with this inquiry, Defendants intend to depose, among others,
David Miscavige, Mary Sue Hubbard, Patricia Brice, Lyman Spurlock, and Paul
Klopper.
(Berry Decl., ¶¶ 9b, 9c, 9j, 9n, and 9s)
D. Defendants Are Entitled To Further Discover
How The Allegedly
Infringing Works Were Uploaded On To Defendants' Bulletin Board System.
Defendants have reason to feel that the alleged copyright infringements were
possibly uploaded on to Defendants' Bulletin Board System by the Church of
Scientology
themselves. In essence, Defendants believe that Scientology may have "
planted"
or "set up" Defendants with anonymous computer uploads. At the very
least, there is a triable issue of fact here as to whether the claimed infringing
documents were uploaded on to Defendants' Bulletin Board System by an entity
and/or
individual other than F.A.C.T.Net and without F.A.C.T.Net's knowledge and/or
consent.
In connection with this inquiry, Defendants intend to depose Vicki Aznaran.
(Berry Decl., ¶ 9g)
IV. CONCLUSION
For the reasons described above, Defendants respectfully request that their
request for a continuance of time, up to and including April 6, 1997, in which
to oppose BPI's Motion be granted.
| |
Respectfully submitted,
BEEM & MANN, P.C.
By__________________________________
Clifford L. Beem, #917
Attorneys for Defendants -
F.A.C.T.Net, Inc. and
Lawrence Wollersheim
One Norwest Center - Suite 3901
1700 Lincoln Street
Denver, Colorado 80203
(303) 894-8100
|
CERTIFICATE OF SERVICE
I hereby certify that on this _____ day of February, 1997, I mailed a true
and correct copy of the foregoing MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION PURSUANT TO FRCP 56(f) to counsel of record, by placing
same in the United States Mail, postage prepaid, properly addressed as follows:
Todd P. Blakely, Esq. Elliot J. Abelson, Esq.
John R. Posthumus, Esq. SIMKE, CHODOS, SILBERFELD
Robert R. Brunelli, Esq. & ANTEAU, INC.
SHERIDAN ROSS, P.C. 6300 Wilshire Blvd., #9000
1700 Lincoln Street, Suite 3500 Los Angeles, California 90048
Denver, Colorado 80203
Helena K. Kobrin, Esq. Graham E. Berry, Esq.
7629 Fulton Avenue MUSICK, PEELER & GARRETT
North Hollywood, California 91605 One Wilshire Boulevard
Los Angeles, California 90017
Earle C. Cooley, Esq.
COOLEY, MANION, MOORE & JONES, P.C. Daniel A. Leipold, Esq.
21 Custom House Street HAGENBAUGH & MURPHY
Boston, Massachusetts 02110 701 South Parker Street, #8200
Orange, California 92868
Jeffrey A. Chase, Esq.
Ann B. Frick, Esq. Mr. Lawrence Wollersheim
JACOBS CHASE FRICK c/o F.A.C.T.Net, Inc.
KLEINKOPF & KELLEY LLC 999 West Moorhead Circle, B
1050 - 17th Street, Suite 1500 Boulder, Colorado 80303
Denver, Colorado 80265
Michael H. Berger, Esq.
Scot M. Peterson, Esq.
WALDBAUM, CORN, KOFF, BERGER
& COHEN, P.C.
303 East 17th Avenue, Suite 940
Denver, Colorado 80203