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Case 2:15-cv-03462-RGK-AGR Document 152 Filed 03/26/16 Page 1 of 12 Page ID #:3684

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

MICHAEL SKIDMORE, as Trustee for


15 the RANDY CRAIG WOLFE TRUST,
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Hon. R. Gary Klausner

Plaintiff,
NOTICE OF MOTION AND
MOTION TO WITHDRAW
ADMISSIONS; MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT THEREOF

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


Francis Malofiy; and [Proposed] Order
Date: May 10, 2016
Time: 9:00 am
Courtroom: 850

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Defendants.

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NOTICE OF MOTION AND MOTION TO WITHDRAW ADMISSIONS

Case 2:15-cv-03462-RGK-AGR Document 152 Filed 03/26/16 Page 2 of 12 Page ID #:3685

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on May 10, 2016, at 9:00 am, or as soon

thereafter as this matter can be heard before the Honorable R. Gary Klausner of the

United States District Court for the Central District of California, at 312 N. Spring

Street, Courtroom 850, Los Angeles, California, 90012, Plaintiff Michael Skidmore,

Trustee for the Randy Craig Wolfe Trust, will move and hereby moves to withdraw

the admissions Defendants are claiming have been admitted.

Plaintiffs counsel notified defense counsel in motion practice that he intends

to file such a motion on March 7, 2016 (Doc. No. 118-7, at 27) and Defendants so

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responded. (Doc. No. 129-3). In addition, on March 24 and 25, 2016, Plaintiffs

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counsel attempted to initiate a meet and confer with defense counsel but was either

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unable to reach counsel and later was told they were unavailable. Malofiy Decl., at

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8.

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This motion is based on the attached memorandum of points and authorities in

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support thereof, the declaration of Francis Malofiy in support thereof, and all files

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and pleadings in this action.

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Dated: March 26, 2016

FRANCIS ALEXANDER, LLC


/s/ Francis Alexander Malofiy
Francis Alexander Malofiy
Attorneys for Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES


I.

INTRODUCTION
Defendants served requests for admissions on Plaintiff on December 4, 2015.

See Malofiy Decl., at 2, Exhibit 1. The requests ask that Plaintiff admit that The

Taurus Composition is a work for hire and thus does not have standing to sue. Such

a request for admission is contradicted by the applicable factswhich conclusively

demonstrate that Taurus was written well before the work made for hire contract

and law which does not allow a work to retroactively be designated as made for

hire.

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However, due to the fact that Plaintiff was injured in an accident in December

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2015, and Plaintiffs counsel was traveling to London for depositions in the case at

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bar, answers denying the admissions were not filed in 30 days pursuant to Federal

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Rule of Civil Procedure 36. Plaintiffs counsel, however, believed that Mr.

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Anderson, as both sides were routinely providing discovery past the pertinent

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deadlines, had implicitly granted Plaintiff an extension. In January 2016, defense

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counsel and Plaintiffs counsel has a discussion concerning the late answers and

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Plaintiffs counsel told defense counsel that Plaintiff would be providing answers.

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On February 5, 2016, before Plaintiffs deposition, Plaintiff did serve responses to

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the requests for admissions denying that Taurus is a work for hire. Defense counsel

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had every opportunity to question and cross examine Plaintiff in regards to the

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responses to the requests for admissions. Plaintiff notes that he is filing this motion

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to withdraw to preserve his rights but that that he does not concede that the requests

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for admission were formally deemed admitted under Rule 36.

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In addition, at a meet and confer before the summary judgment motion was

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filed, defense counsel never indicated they believed the admission were deemed

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admitted and that that would a main basis on which they were asking for summary

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judgment. Had Plaintiff known, this issue could have been addressed earlier.

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II.

FACTUAL BACKGROUND
Randy Craig Wolfe wrote the song Taurus in 1966 and performed it regularly

throughout 1967 in Los Angeles clubs with Spirit. On August 29, 1967, Wolfe

signed a contract with Hollenbeck Music providing that future music he wrote

would be a work made for hire. A copyright for Taurus was registered in 1968.

Defendants served requests for admissions on Plaintiff on December 4, 2016,

asking that Plaintiff admit that Taurus was a work made for hire. Declaration of

Francis Malofiy, at 2. It is simply not true that Taurus is a work for hire. Such a

notion is contradicted by a vast amount of evidence which demonstrates that Taurus

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was created not as a work for hire for Hollenbeck Music after the August 29, 1967

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contract, but instead was created well before in 1966 and played widely at clubs in

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Los Angeles in early to mid-1967. See Andrea Wolfe Decl., at 4-5 (Doc. No. 118-

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3); Janet Wolfe Decl., at 4-5 (Doc. No. 118-4); Malofiy SJ Decl. (Doc. No. 124),

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Exhibit 8 Andes Depo., p.150-156; Barry Hansen Decl. (Doc. No. 119-1), 1-2 &

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Emails; Skidmore Decl. (Doc. No. 119-4), at 12; Brian Bricklin Decl. (Doc. No.

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118-10), Audio Exhibits 33-36 (recordings of Taurus played live before August 29,

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1967). A contract cannot retroactively designate preexisting material and

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compositions as made for hire.. See Gladwell Govt. Services Inc. v. County of

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Marin, 265 Fed. Appx. 624 2008 WL 268268 (9th Cir. 2008). In addition, Taurus

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has never been registered with the Copyright Office as a work for hire, Mr. Wolfe

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has always been listed as the author (Doc. No. 97-11, at p.225), and the renewal

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registration is in Mr. Wolfes name (Doc. No. 31, Exhibit 1)prima facie evidence

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that he is a valid owner of the copyright.

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Plaintiff, however, did not serve responses by January 4, 2016, because

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Plaintiff was injured in an accident earlier in December 2015, because of the holiday

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season, and because Plaintiffs counsel was preparing to travel to London for the

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depositions of defendants James Patrick Page and John Paul Jones in early January.

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Declaration of Francis Malofiy, at 3. At some point in January 2016 defense


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counsel indicated that the responses were late and Plaintiffs counsel responded that

he would get him the answers. Id. at 4-5. Plaintiffs counsel understood because of

this interaction that there was in fact an implicit extension to answer the requests for

admissions. Id. This understanding was also based on the fact that compliance with

discovery by both parties had been lax (Defendants produced document discovery

over one and half months late), and that defense counsel had been provided informal

courtesies by Plaintiff to answer discovery after certain deadlines. Id. at 5.

Plaintiff did provide formal answers denying the requests for admissions on

February 5, 2016, before the start of Plaintiffs deposition, so that Defendant could

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fully question Plaintiff with respect to his answers. Id. at 6.

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At a later meet and confer on February 18, 2016, in advance of the filing of

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the summary judgment motion, defense counsel never disclosed that Defendants

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motion would be relying upon the position that requests for admission had been

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deemed admitted. Id. at 7. However, Defendants motion for summary judgment

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did claim that the requests were deemed admitted under Rule 36.

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Although Plaintiff understood there was an extension to answer the admission,

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and does not believe that any admissions were admitted, he is filing this motion out

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of an abundance of caution. It must be stressed that at all points Defendants were

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aware that Plaintiff was opposing their work for hire argument, which is fatally

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flawed as Taurus was created well in advance of the work made for hire agreement.

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Defendants are hoping to use a procedural technicality to dismiss an otherwise

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meritorious case, something frowned upon by the pertinent case law.

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III.

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LEGAL STANDARD FOR WITHDRAWING ADMISSIONS


If a request for admission was answered, but there is a dispute as to whether

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there was an extension of time to answer, the Courts favor not deeming the requests

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admitted under Rule 36, especially if holding the requests as admitted would

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foreclose an adjudication of the action on the merits. Lema v. City of Modesto,

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No. 1:10-CV-02180 AWI, 2012 WL 439400, at *2 (E.D. Cal. Feb. 9, 2012).


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After a request for admission has been deemed admitted, a party can move to

withdraw the unanswered admissions (note Plaintiff has already answered the

admissions). Conlon v. U.S., 474 F.3d 616, 621 (9th Cir. 2007). When considering a

motion to withdrawn admissions, the Court focuses on the two factors in Rule 36(b):

(1) whether allowing withdrawal will aid resolution of the case, and (2) whether the

propounding party can establish prejudice at trial if the admissions are withdrawn.

Conlon, 474 F.3d at 621. Notably, the Ninth Circuit has observed that a court

should not foreclose the merits of controversies as punishment unless the

necessities of the situation require it. Hadley v. U.S., 45 F.3d 1345, 1350 (9th Cir.

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1995).
The first prong [of Rule 36(b)s test for withdrawal of an admission], which

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essentially asks if allowing the withdrawal will aid in the resolution of the case,

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favors allowing [the party] to withdraw the admissions. Gallegos v. City of Los

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Angeles, 308 F.3d 987, 993 (9th Cir. 2002). Allowing withdrawal under the first

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prong is satisfied when upholding the admissions would practically eliminate any

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presentation of the merits of the case. Conlon, 474 F.3d at 622 (internal quotation

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marks omitted). In essence, the Ninth Circuit states that cases should be decided on

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the merits.

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The second prong requires that Defendants demonstrate that they will be

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prejudiced at trial if the deemed admissions are withdrawn. The prejudice

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contemplated by Rule 36(b) . . . relates to the difficulty a party may face in proving

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its case, including problems caused by the unavailability of key witnesses, or the

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sudden need to obtain evidence with respect to the questions previously deemed

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admitted.' Gallegos, 308 F.3d at 993 (quoting Hadley v. United States, 45 F.3d

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1345, 1348 (9th Cir. 1995)); see also Conlon, 474 F.3d at 622. Inconvenience does

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not amount to prejudice. See Conlon, 474 F.3d at 622-23.

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When undertaking a prejudice inquiry under Rule 36(b), district courts

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should focus on the prejudice that the nonmoving party would suffer at trial. Id. at
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623 (emphasis added) (citing Sonoda v. Cabrera, 255 F.3d 1035, 1039-40 (9th Cir.

2001)). The Conlon court noted that in the Sonoda case the motion to withdraw was

made and granted before trial and did not hinder the opposing partys ability to

present evidence. It is important to note that the Ninth Circuit has held that reliance

on a deemed admission in preparing a summary judgment motion does not

constitute prejudice. Conlon, 474 F.3d at 623 (emphasis added). The Ninth Circuit

also concluded that when deemed admissions resulted in another party choosing not

to engage in other discovery, it did not amount to prejudice. Id. It specifically noted

that under those circumstances the district court has the option of re-opening

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discovery and reiterated that the prejudice in question must relate to the hardship the

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party will suffer in proving its case at trial. Id.

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IV.

PLAINTIFF UNDERSTOOD THAT AN INFORMAL EXTENSION

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WAS GRANTED BY DEFENDANTS

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Defense counsel served the requests for admissions on December 4, 2016,

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meaning they were due on January 3, 2016. However, given that the Holidays had

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just passed, as well as Plaintiff was injured in an accident, and Plaintiffs counsel

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was flying to London for depositions, providing timely and accurate answers was

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not possible. Defense counsel subsequently did note that the responses were late in

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January 2016 and Plaintiffs counsel told them that the answer were coming.

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Defense counsel never claimed that answering was unnecessary or that they viewed

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the admissions as deemed admitted. Plaintiffs counsel understood that an informal

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extension had been given by defense counsel. This was especially so because

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Plaintiffs counsel had given defense counsel courtesies and leniencies in serving

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discovery responses past the applicable deadlines.

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Please note that under Rule 36, untimely answers are deemed automatically

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admitted if not answered in thirty days. Thus, when defense counsel mentioned to

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Plaintiffs counsel that the answers were late and Plaintiffs counsel stated that

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answers would be provided without objection, this was interpreted as defense


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counsel affording Plaintiff an implicit extension to answer.

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A district court in California has been confronted with a similar situation. In


Lema v. City od Modesto, the Court stated:

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Here, the Court has before it two conflicting assertions with regard to
any extension or extensions of time given regarding the discovery at
issue. Simply stated, Defendant contends it gave a single thirty-day
extension of time whereby Plaintiff's responses became due no later
than December 7, 2011. (Doc. 30 at 3.) On the other hand, Plaintiff's
counsel declares that at some point after receiving the thirty-day
extension of time, he and defense counsel spoke on the telephone
about an open extension of time because Plaintiff's counsel wished
to complete the demand and manage expenses. Plaintiff's counsel
further declares that defense counsel agreed to his request. (Doc. 30 at
7.) The Court has carefully reviewed the numerous exhibits attached
to Defendant's motion (Doc. 24), and, on this record, is unwilling to
grant Defendant's request. To do so would effectively eviscerate
Plaintiff's action. (See Doc. 24, Ex. E.)

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1:10-CV-02180 AWI, 2012 WL 439400, at *2 (E.D. Cal. Feb. 9, 2012). Here, there

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is also a dispute about whether there was an extension to answer the requests for

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admission and the defendants are also attempting to terminate Plaintiffs action with

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the deemed admissions.

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Based on the courtesies that were being extended between counsel, and the

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nature of interactions between counsel implying that Plaintiff could still answer the

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requests for admissions, the requests should not be considered deemed admitted

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under Rule 36.

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V.

IF THE REQUESTS ARE DEEMED ADMITTED, THE COURT

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SHOULD ALLOW THE ADMISSIONS TO BE WITHDRAWN

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Even if the requests for admission are deemed admitted by the Court, Plaintiff

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should be permitted to withdraw them. In determining whether to allow deemed

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admissions to be withdrawn the Court should focus on the factors of whether (1)

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withdrawal will favor resolution of the case on the merits, and (2) allowing

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withdrawal will cause the opposing party prejudice at trial. See FRCP 36.
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Withdrawal should be permitted here because it will favor the resolution of this case

on the merits and because Defendants can identify no prejudice they will suffer at

trial.

With respect to the first prong, withdrawal will favor resolution of this case on

the merits. Plaintiff adamantly denies that the work in question is a work made for

hire as it was created in 1966 well before the work for hire contract in August 1967.1

It is basic law that a work for hire contract cannot retroactively designate a work as

made for hire. See Gladwell Govt. Services Inc. v. County of Marin, 265 Fed. Appx.

624 2008 WL 268268 (9th Cir. 2008); see also Playboy Enters., Inc. v. Dumas, 53

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F.3d 549, 558-59 (2d Cir .1995); Schiller & Schmidt, Inc. v. Nordisco Corp., 969

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F.2d 410, 412-13 (7th Cir. 1992) (The writing must precede the creation of the

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property to qualify as a work-for-hire agreement.). The Ninth Circuit also cautions

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that not allowing withdrawal on a dispositive issue is a severe punishment that

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should only be invoked when absolutely necessary. Hadley, 45 F.3d 1345 at 1350.

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As allowing withdrawal will benefit the resolution of this case on the merits, and not

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allowing withdrawal may eviscerate the action, the first prong favors Plaintiff.

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With respect to the second prong, Defendants cannot show any prejudice at

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trial. It is crucial to keep in mind that reliance on a deemed admission in

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preparing a summary judgment motion does not constitute prejudice. Conlon,

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474 F.3d at 623 (emphasis added). Defendants argument for why Taurus is

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allegedly a work for hire is based on the relatively undisputed facts in the record that

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Taurus was registered after the work for hire contract was signed. Under the 1909

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Defendants are advancing the legally unsupported argument that a work that was formally
copyrighted after a work for hire agreement is a work for hire under the 1909 Act. But the
pertinent rule is that the work made for hire contract must exist before the material in
question. Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 412-13 (7th Cir. 1992)
(The writing must precede the creation of the property to qualify as a work-for-hire
agreement.). Taurus was written and created well before the work made for hire agreement.
In addition, the copyright for Taurus was renewed in Randy Wolfes name which prima facie
establishes that he is a valid owner and that it is not work for hire. (Doc. No. 31, Exhibit 2).
In fact, since 1968 Mr. Wolfe has been listed as the author of the Taurus copyright. (Doc. No.
97-11, at p.225)
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Act registration affords copyright protection, as opposed to the 1976 Act.

Defendants work made for hire argument claims that as long as a work was

registered after a work made for hire contract, it is a work for hire under the 1909

Act. This is primarily a legal argumentalbeit erroneous. Thus, it is hard to see how

Defendants will be prejudiced at trial if the admissions are withdrawn. They will still

be fully able to present their argument.

Defendants claim that allowing withdrawal will somehow cause them

prejudice because they neglected to depose Lou Adler, who owns Hollenbeck

Music. Doc. No. 129-3, at 13. But this argument missed the mark by many miles as

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Adler has been known to both sides since the beginning of this litigation, was on

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both parties initial disclosures, and Defendants subpoenaed Adlers companies for

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documents but deliberately chose not to depose him. Id. at 3. It also must not be

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forgotten that under Conlon the failure of Defendants to depose Adler cannot

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constitute prejudice because it does not speak to prejudice Defendants would suffer

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at trial. Conlon, 474 F.3d at 623 (concluding that when deemed admissions resulted

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in the opposing party choosing not to engage in other discovery it does not constitute

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prejudice for purposes of a motion to withdraw).

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As Defendants work for hire argument is namely one of legal interpretation,

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with sufficient facts in the recordand because Defendants were well aware of this

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issue and the pertinent witnesses for the entirety of the discovery period and in fact

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did conduct discovery into this questionthere will be no prejudice to Defendants at

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trial if the admissions in question are withdrawn.

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Thus, both prongs under Rule 36(b) favor allowing withdrawal of the deemed

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admissions (if the requests were in fact deemed admitted). Plaintiff notes that he

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answered the admissions within the discovery period, believed he had an informal

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extension to answer from defense counsel, and otherwise cooperated extensively in

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discovery.

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VI.

CONCLUSION
For the foregoing reasons, Plaintiff respectfully request that the Court either

rule that the admission were not deemed admitted or grant the instant motion to

withdraw admissions.

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Dated: March 26, 2016

FRANCIS ALEXANDER, LLC

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/s/ Francis Alexander Malofiy


Francis Alexander Malofiy, Esq.
Attorney for Plaintiff

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CERTIFICATE OF SERVICE

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Plaintiff hereby represents that Plaintiffs Motion to Withdraw Admissions has been served
upon counsel by email:
Helene Freeman, Esquire
666 Fifth Avenue
New York, NY 10103-0084
T: (212) 841-0547
F: (212) 262-5152
E: hfreeman@phillipsnizer.com
Attorneys for Defendants James Patrick Page, Robert Anthony Plant, and John Paul Jones
(collectively with John Bonham (Deceased), professionally known as Led Zeppelin)
Peter J. Anderson, Esquire
100 Wilshire Blvd. | Suite 2010
Santa Monica, CA 90401
T:(310) 260-6030
F: (310) 260-6040
E: pja@pjanderson.com
Attorney for Defendants Super Hype Publishing, Inc., Warner Music Group Corp.,
Warner/Chappell Music, Inc., Atlantic Recording Corporation, and
Rhino Entertainment Company

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*****
Respectfully submitted,

Francis Alexander, LLC


/s/ Francis Alexander Malofiy
Francis Alexander Malofiy, Esquire
Attorney ID No.: 208494
280 N. Providence Road | Suite 105
Media, PA 19063
T: (215) 500-1000
F: (215) 500-1005
E: francis@francisalexander.com

/d/ March 26, 2016

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