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Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 1 of 19 Page ID #:35145 1 Marc Toberoff (State Bar No.

188547) 2 Keith G. Adams (State Bar No. 240497) 3 Pablo D. Arredondo (State Bar No. 241142) 4 David Harris (State Bar No. 255557) 5 TOBEROFF & ASSOCIATES, P.C. 6 Malibu, California 90265 7 Facsimile:

mtoberoff@ipwla.com kgadams@ipwla.com

parredondo@ipwla.com dharris@ipwla.com

22337 Pacific Coast Highway #348 Telephone: (310) 246-3333 (310) 246-3101

8 Attorneys for Defendants Mark Warren 9 Estate of Joseph Shuster, Jean Adele Peavy, 10 as personal representative of the Estate of 11 12 13

Peary, as personal representative of the

and Laura Siegel Larson, individually and Joanne Siegel

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION Case No: CV 10-03633 ODW (RZx) 14 DC COMICS, Plaintiff, Hon. Otis D. Wright II, U.S.D.J. 15 Hon. Ralph Zarefsky, U.S.M.J. vs.
16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

PACIFIC PICTURES CORPORATION; IP WORLDWIDE, LLC; IPW, LLC; MARC TOBEROFF, an individual; MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER; JEAN ADELE PEAVY, an individual; LAURA SIEGEL LARSON, individually and as personal representative of the ESTATE OF JOANNE SIEGEL, and DOES 1-10, inclusive, Defendants.

DEFENDANTS MOTION FOR ENTRY OF A FED. R. CIV. P. 54(b) JUDGMENT ON OCTOBER 17, 2012 ORDER GRANTING PLAINTIFF DC COMICS FIRST AND THIRD CLAIMS, AND FOR A STAY OF REMAINING CLAIMS Declaration of Keith G. Adams and [Proposed] Order filed concurrently Complaint filed: May 14, 2010 Trial Date: None Set Date: December 17, 2012 Time: 1:30 p.m. Place: Courtroom 11

Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 2 of 19 Page ID #:35146 1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2

PLEASE TAKE NOTICE that on December 17, 2012, at 1:30 p.m., or as soon

3 thereafter as counsel may be heard, in Courtroom 11 of the above-captioned Court, 4 located at 312 N. Spring Street, Los Angeles, California, 90012, defendants Mark 5 Warren Peary, as personal representative of the estate of Supermans co-creator 6 Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as 7 personal representative of the Estate of Joanne Siegel (Defendants), will and 8 hereby do move that the Courts October 17, 2012 Order (Docket No. 507; Order) 9 granting plaintiff DC Comics (DC) Motion For Partial Summary Judgment On Its 10 First And Third Claims be entered as a judgment pursuant to Fed. R. Civ. P. 54(b) 11 and the remaining claims stayed. 12

The Courts Order constitutes a final disposition of DCs First and Third

13 Claims, and there is no just reason to delay entering the orders as an immediately 14 appealable judgment with respect to such claims. Indeed, due to the distinct nature of 15 the claims that are the subjects of the Courts order, the ability to immediately appeal 16 the Order will increase judicial efficiency, streamline the remaining litigation, and 17 significantly promote settlement. 18

Furthermore, as the merits of all of DCs remaining claims are currently before

19 the Ninth Circuit on appeals, this case could be stayed pending the outcome of all 20 such appeals. The merits of DCs Fourth, Fifth and Sixth Claims are currently before 21 the Ninth Circuit in connection with Defendants appeal of the denial of their anti22 SLAPP motion. And as noted by the Court (Order at 18 n.3), DCs Second Claim is 23 effectively before the Ninth Circuit in connection with the appeals in the closely24 related case, Siegel v. Warner Bros. Entertainment Inc., C.D. Cal. Case No. 04-CV25 08400 ODW (RZx), Appeal Nos. 11-55863, 11-56034. If a Rule 54(b) judgment is 26 entered, the merits of all claims will be before the Ninth Circuit. 27

This motion is made following the conference of counsel pursuant to L.R. 7-3,

28 which took place on October 25, 2012. See Declaration of Keith Adams, Exs. A-C, 29 30
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DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 3 of 19 Page ID #:35147 1 4. This motion is based on the attached memorandum of points and authorities, the 2 pleadings and records on file in this action, such additional authority and argument as 3 may be presented in any reply and at the hearing on this motion, and such other 4 matters of which this Court may take judicial notice. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30
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DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

Dated: November 12, 2012

RESPECTFULLY SUBMITTED, /s/ Marc Toberoff Marc Toberoff TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel

Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 4 of 19 Page ID #:35148 1 2 3 4 5

TABLE OF CONTENTS INTRODUCTION ..................................................................................................... 1 BACKGROUND ....................................................................................................... 2 ARGUMENT ............................................................................................................. 4 I. RULE 54(b) JUDGMENTS ARE COMMONLY ENTERED AND REVIEWED WHEN CLAIMS ARE FULLY ADJUDICATED ................... 4 THE COURT SHOULD ENTER JUDGMENT ON ITS ORDER ................ 5 A. The Courts Order Fully Resolves DCs First And Third Claims ........ 5 1. 2. DCs First Claim Presents Distinct Legal And Factual Issues And Has Been Fully Resolved ......................................... 5 DCs Third Claim Presents Distinct Legal And Factual Issues And Has Been Fully Resolved Or Mooted By The Courts Order .............................................................................. 6

6 II. 7 8 9 10 11 12 13 14 III.

B. C.

Judicial Efficiency And Economy Strongly Support The Entry Of A Rule 54(b) Judgment ......................................................................... 6 DCs Reasons For Opposing Support The Entry Of Judgment ............ 8

THIS ACTION SHOULD BE STAYED PENDING APPEAL ..................... 9

15 CONCLUSION ........................................................................................................ 10 16 APPENDIX I ........................................................................................................... 11 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Tables of Contents and Authorities


i

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TABLE OF AUTHORITIES Cases 2012 WL 4829189 (D. Or. Oct. 8, 2012) ............................................................... 6

3 Audubon Soc. of Portland v. U.S. Natural Res. Conservation Serv., 4

Chuman v. Wright, 960 F.2d 104 (9th Cir. 1992) .................................................................................. 8 5 6 Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519 (9th Cir. 1987) ............................................................................ 4, 8
7

Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1 (1980) ............................................................................................... 4, 8 8 9 De Aguilar v. AMTRAK, 2006 U.S. Dist. LEXIS 11187 (E.D. Cal. March 2, 2006)................................... 10
10

Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059 (9th Cir. 2007) ................................................................................ 9 11 12 Doe v. University of Cal., 1993 U.S. Dist. LEXIS 12876 (N.D. Cal. September 2, 1993) ........................... 10
13

In re USA Commercial Mortg. Co., 452 F. Appx. 715 (9th Cir. 2011) ........................................................................... 5 14 15 Intl Asso. of Bridge, etc. Local Union 75 v. Madison Industries, Inc., 733 F.2d 656 (9th Cir. 1984) .................................................................................. 8
16

James v. Price Stern Sloan, Inc., 283 F.3d 1064 (9th Cir. 2002) ................................................................................ 4 17 18 Landis v. North American Co., 299 U.S. 248 (1936) ............................................................................................... 9
19

Las Vegas Sands, Inc. v. Culinary Workers Local Union # 226, 32 Fed. Appx. 459 (9th Cir. 2002) ......................................................................... 5 20 21 Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857 (9th Cir. 1979) .................................................................................. 9
22

Loral Fairchild Corp. v. Victor Co. of Japan, 931 F. Supp. 1044 (E.D.N.Y. 1996) ....................................................................... 8 23 24 Matek v. Murat, 862 F.2d 720 (9th Cir. 1988) ................................................................................ 10
25

Natl Assn of Home Builders v. Norton, 325 F.3d 1165 (9th Cir. 2003) ................................................................................ 5 26 27 Newsub Magazine Services LLC v. Heartland Direct, Inc., 2004 WL 524689 (N.D. Ill. Mar. 16, 2004) ........................................................... 6
28 29 30 Tables of Contents and Authorities
ii

Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 6 of 19 Page ID #:35150 1 Noel v. Hall, 2 3

568 F.3d 743 (9th Cir. 2009) .............................................................................. 4, 8

Roe v. City of Spokane, 2008 U.S. Dist. LEXIS 82528 (E.D. Wash. Oct. 16, 2008) ................................. 10 542 F. Supp. 2d 1098 (C.D. Cal. 2008) .................................................................. 2

4 Siegel v. Warner Bros. Entertainment Inc., 5 6

Smith v. Columbia Gas of Ohio Group Med. Benefit Plan, 2010 WL 319953 (S.D. Ohio Jan. 20, 2010).......................................................... 6 466 F. Appx. 620 (9th Cir. 2012) ........................................................................... 5

7 Steel v. City of San Diego, 8 9

Texaco, Inc. v. Ponsoldt, 939 F.2d 794 (9th Cir. 1991) .................................................................................. 4 2007 U.S. Dist. LEXIS 60077 (N.D. Cal. Aug. 16, 2007) ..................................... 8

10 Whitney v. Wurtz, 11 12

Wood v. GCC Bend, LLC, 422 F.3d 873 (9th Cir. 2005) .................................................................................. 8

13 Statutes 14 17 U.S.C. 304(c) ..................................................................................................... 1 15 17 U.S.C. 304(c)(6)(D) ....................................................................................... 3, 6 16 17 U.S.C. 304(d) ................................................................................................. 1, 5 17 Fed. R. Civ. P. 54(b) .........................................................................................passim 18 19 20 21 22 23 24 25 26 27 28 29 30 Tables of Contents and Authorities
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Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 7 of 19 Page ID #:35151 1 2

INTRODUCTION On October 17, 2012, this Court granted DCs motion for partial summary

3 judgment as to its First and Third Claims, and denied Defendants cross-motion for 4 partial summary judgment. Docket 507 (Order). 5

That Order resolved at the district court level the central issue in this litigation:

6 whether the notice of termination filed under 17 U.S.C. 304(d) by the estate of 7 Joseph Shuster (the Shuster Estate), with an effective date of October 26, 2013 (the 8 Shuster Termination), was valid. DCs First Claim requested a declaration that the 9 Shuster Termination was ineffective, and this Courts Order held that the Shuster 10 Termination was barred by a 1992 agreement between DC and Shusters siblings. 11

In addition to the First and Third Claims decided by the Courts Order, the

12 merits of DCs Second Claim are effectively before the Ninth Circuit in the Larson v. 13 Warner Bros. Entertainment Inc. cross-appeals (the Siegel Appeals; Appeal Nos. 14 11-55863, 11-56034) as noted in the Order (at 18 n.3), and the merits of DCs Fourth, 15 Fifth and Sixth Claims are also before the Ninth Circuit on appeal of the denial of 16 Defendants anti-SLAPP motion (the Anti-SLAPP Appeal; Appeal No. 11-56934). 17 Entry of a Rule 54(b) judgment will thereby put the merits of all claims in this case 18 squarely before the Ninth Circuit for resolution. Accordingly, if a 54(b) judgment is 19 entered, this litigation can and should be stayed, while the Ninth Circuit decides such 20 claims, just as this Court ordered in Siegel (C.D. Cal. Case No. 04-CV-08400 ODW). 21

The parallel Siegel litigation likewise centered on whether notices of

22 termination filed by the heirs of Jerome Siegel under 17 U.S.C. 304(c), with an 23 effective date of April 16, 1999 (the Siegel Termination), were valid. On summary 24 judgment, Judge Larson granted the Siegels First Claim for declaratory relief that the 25 Siegel Termination was valid. This Court then entered a Rule 54(b) judgment as to 26 the First Claim and DCs First through Fourth Counterclaims, and duly stayed the 27 remainder of Siegel (Case No. 04-CV-08400 ODW, Docket 667). The validity of the 28 Siegel Termination is currently before the Ninth Circuit in the Siegel Appeals. 29 30
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DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 8 of 19 Page ID #:35152 1

The validity of the parallel Siegel and Shuster Terminations is the central

2 economic issue in these closely-related cases because it determines whether: (a) DC 3 owes a duty to account to Laura Siegel Larson and the Shuster Estate for post-1999 4 (Siegel Termination) and post-2013 (Shuster Termination) exploitations of 5 Superman; and (b) whether DC can exploit new Superman derivative works after 6 October 26, 2013 without a license from Ms. Siegel and/or the Shuster Estate. 7

Therefore, just as in Siegel, judicial efficiency strongly supports the entry of a

8 Rule 54(b) judgment on DCs fully-adjudicated First and Third Claims. This would 9 allow the Ninth Circuit to adjudicate the validity of the Shuster Termination as soon 10 as possible, along with the Siegel Termination. Those adjudications would finally 11 determine the copyright interests recovered by the Siegel and Shuster Terminations 12 as well as the critical post-2013 issue. In turn, this would allow DC, Ms. Siegel and 13 the Shuster Estate to properly value their respective rights and interests, and thereby 14 significantly enhance the prospects of settling this long-running dispute. 15 16 17

A Rule 54(b) judgment can and should be entered forthwith. BACKGROUND The litigation between DC and the heirs of Supermans co-creators spans over

18 eight years and three separate lawsuits. In 1997, the widow and daughter of Jerome 19 Siegel (Supermans original writer) served termination notices seeking to recapture 20 Mr. Siegels copyright interest in Superman. In 2004, after years of failed 21 negotiations with DC, the Siegel heirs brought suit seeking a declaration that the 22 Siegel Termination was valid and entitled them to an accounting of Superman and 23 Superboy related-profits. Case Nos. 04-8400, 04-8776. In 2008, Judge Larson 24 granted the Siegel heirs partial summary judgment, affirming the validity of the 25 Siegel Termination. Siegel v. Warner Bros. Entertainment Inc., 542 F. Supp. 2d 26 1098 (C.D. Cal. 2008). Over DCs objections, this Court entered a Rule 54(b) 27 judgment on this order, currently before the Ninth Circuit in the Siegel Appeals. 28 29 30

In November 2003, the executor of the Shuster Estate served the Shuster
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DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 9 of 19 Page ID #:35153 1 Termination, which sought to recapture Joseph Shusters copyright interest as the co2 creator and illustrator of Superman. DC filed this action on May 14, 2010 (Docket 3 1), bringing three federal claims largely against the Shuster executor (First, Second 4 and Third Claims) and three state-law claims largely against his and the Siegels 5 counsel, Marc Toberoff (Fourth, Fifth, and Sixth Claims). The most important claim 6 by far was DCs First Claim, which sought a declaration that the Shuster Termination 7 was ineffective. DCs Second and Third Claims, pled in the alternative to the First 8 Claim, concerned the scope of the Shuster Termination (Second Claim), and DCs 9 alleged right under 17 U.S.C. 304(c)(6)(D) to exclusively negotiate the re-purchase 10 of the Shuster Estates recaptured copyright interests (Third Claim). 11

DCs three state-law claims consisted of two claims for purported tortious

12 interference against its opposing counsel and a claim under Californias unfair 13 competition law. Defendants brought a motion to strike DCs state-law claims under 14 Californias anti-SLAPP statute, which was denied. Docket No. 337. The denial of 15 Defendants anti-SLAPP motion, along with the merits of DCs three state-law 16 claims, is currently before the Ninth Circuit in the Anti-SLAPP Appeal. 17

On July 16, 2012, DC moved for partial summary judgment as to its First and

18 Third Claims. Docket No. 458. On August 20, 2012, Defendants brought a cross19 motion for partial summary judgment on DCs First, Second, and Third Claims. 20 Docket No. 478. The vast majority of the parties briefing and the entirety of their 21 September 5, 2012 oral argument (Docket No. 489) were devoted to DCs First 22 Claim, due to its overriding importance in this case. 23

On October 17, 2012, the Court ruled on the parties cross-motions, granting

24 partial summary judgment to DC on its First and Third Claims, and declining to rule 25 on DCs Second Claim as effectively part of the Siegel Appeals. 1 Docket No. 507. 26 27

As the Court agreed in its Order, DCs Second Claim seeks to re-litigate, and overlaps with, issues in Siegel on appeal and [m]uch of this claim is barred by the 28 doctrine of issue preclusion/collateral estoppel. Order at 18 n.3
29 30
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DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

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ARGUMENT RULE 54(b) JUDGMENTS ARE COMMONLY ENTERED AND REVIEWED WHEN CLAIMS ARE FULLY ADJUDICATED Fed. R. Civ. P. 54(b) provides that [w]hen an action presents more than one

5 claim for relief the court may direct entry of a final judgment as to one or more, 6 but fewer than all, claims or parties only if the court expressly determines that there is 7 no just reason for delay. Thus, Rule 54(b) allows a district court to certify orders as 8 final and immediately appealable when they constitute an ultimate disposition of an 9 individual claim entered in the course of a multiple claims action and there is no 10 just reason to delay appellate review. Curtiss-Wright Corp. v. General Electric Co., 11 446 U.S. 1, 7-8 (1980). In entering judgment, courts must take into account judicial 12 administrative interests as well as the equities involved. Id. at 9. 13

The Ninth Circuit embraces a very pragmatic approach [to Rule 54(b)

14 judgments] focusing on severability [of claims] and efficient judicial administration. 15 Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1525 (9th 16 Cir. 1987). [C]laims certified for appeal do not need to be separate and independent 17 from the remaining claims, so long as resolving the claims would streamline the 18 ensuing litigation. Noel v. Hall, 568 F.3d 743, 747 (9th Cir. 2009) (citations om.). 19

The present trend is toward greater deference to a district courts decision to

20 certify under Rule 54(b). Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798 (9th Cir. 21 1991). [I]ssuance of a Rule 54(b) order is a fairly routine act that is reversed only in 22 the rarest instances. James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 (9th Cir. 23 2002). In fact, since 2000, the Ninth Circuit has upheld the entry of judgment under 24 Rule 54(b) in virtually every case that Defendants could locate. See Appendix I 25 (collecting cases). Typically, the Ninth Circuit simply notes that a Rule 54(b) 26 judgment has been entered and decides the merits of the appeal before it, approving it 27 by implication. Id. (collecting cases). Out of the approximately 120 cases 28 Defendants identified during this period, the Ninth Circuit found a Rule 54(b) 29 30
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DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 11 of 19 Page ID #:35155 1 judgment improper only five times (four on purely technical grounds), and upheld 2 the entry of 54(b) judgment in every other instance. 3 II. 4 5 6 7
2

THE COURT SHOULD ENTER JUDGMENT ON ITS ORDER A. The Courts Order Fully Resolves DCs First And Third Claims 1. DCs First Claim Presents Distinct Legal And Factual Issues And Has Been Fully Resolved DCs First Claim was fully resolved by the Courts Order. The First Claim

8 asked for a declaration that the Shuster Termination is ineffective, and was brought 9 only against the Shuster defendants (i.e., Mark Warren Peary and Jean Adele Peavy). 10 Docket No. 49 (FAC) 106. The sole relief sought was [a] declaration by this 11 Court regarding the validity of the Shuster Termination Notice. FAC 134. The 12 Order granted this relief, ruling that the Shuster Termination was ineffective because 13 the pre-1978 grants it sought to terminate had been revoked and replaced by a 1992 14 Agreement, not subject to termination under 17 U.S.C. 304(d). Order at 13. 15

In the closely-related Siegel case, this Court entered a Rule 54(b) judgment on

16 the First Claim because it fully resolved the validity of the Siegel Termination. 17 Siegel, Docket No. 667. Here, DCs First Claim as to the validity of the Shuster 18 Termination has been fully resolved by the Courts Order, and is a factually and 19 legally distinct issue, easily severable from the remaining claims. Adidas Am., Inc. 20 v. Payless Shoesource, Inc., 166 Fed. Appx. 268 (9th Cir. 2006) (upholding entry of 21 Rule 54(b) judgment). 22 23 24 25 26 27 28 29 30
2

In these four, the trial court missed a procedural step and failed to certify that there was no just reason for delay. See Natl Assn of Home Builders v. Norton, 325 F.3d 1165, 1167 (9th Cir. 2003) (the district court never made the requisite express determination that there is no just reason for delay) (quotations omitted) (later 54(b) appeal upheld at 340 F.3d 835); Las Vegas Sands, Inc. v. Culinary Workers Local Union # 226, 32 Fed. Appx. 459, 460 (9th Cir. 2002) (same); Steel v. City of San Diego, 466 F. Appx. 620, 621 (9th Cir. 2012) (same); In re USA Commercial Mortg. Co., 452 F. Appx. 715, 721 (9th Cir. 2011) (dismissing appeal where district court entered a Rule 54(b) judgment but provided no reasoning for doing so).
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2.

DCs Third Claim Presents Distinct Legal And Factual Issues And Has Been Fully Resolved Or Mooted By The Courts Order

Like DCs First Claim, DCs Third Claim was also resolved and GRANTED

4 by this Courts Order. The claim sought declaratory relief regarding DCs alleged 5 right under 17 U.S.C. 304(c)(6)(D) to exclusively negotiate with the Shuster 6 Estate in the event the Shuster Termination was upheld. FAC 167-68. 7

Specifically, DCs Third Claim sought a declaration that certain agreements

8 regarding the Shuster Termination, such as the 2001 and 2003 agreements between 9 the Shusters and Pacific Picture Corp., were invalid because they violated DCs 10 alleged right under 17 U.S.C. 304(c)(6)(D). FAC 167-69, 192-194. The Order 11 granted DC summary judgment on its Third Claim, ruling that agreements 12 purporting to grant and otherwise encumber rights covered by a (to be) terminated 13 grant are hereby deemed invalid. Order at 17. There is no just reason to delay 14 bringing this issue of statutory construction before the Ninth Circuit as well. 15

Furthermore, because the Court granted DCs First Claim and invalidated the

16 Shuster Termination, the Shuster Estate does not have any interests in the Superman 17 copyright to negotiate with DC over. The Third Claim, pled in the alternative to the 18 First Claim, is thus moot to whatever extent it was not fully adjudicated. See Smith v. 19 Columbia Gas of Ohio Group Med. Benefit Plan, 2010 WL 319953, at *7 (S.D. Ohio 20 Jan. 20, 2010) (noting that claims were rendered moot since they were pled in the 21 alternative to the claim on which Plaintiff was granted judgment.). 22 23 24 25
3 3

B.

Judicial Efficiency And Economy Strongly Support The Entry Of A Rule 54(b) Judgment

Entry of a 54(b) judgment will achieve the goals of judicial economy and

See Newsub Magazine Services LLC v. Heartland Direct, Inc., 2004 WL 524689, at *5 (N.D. Ill. Mar. 16, 2004) (Because Count II is pled in the alternative to Count I, 27 summary judgment as to liability on Count II is denied as moot.); Audubon Soc. of Portland v. U.S. Natural Res. Conservation Serv., 2012 WL 4829189, at *1 (D. Or. 28 Oct. 8, 2012) (Third Claim pled in alternative to Second Claim dismissed as moot when Defendant conceded Second Claim).
26 29 30
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DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 13 of 19 Page ID #:35157 1 efficiency by both streamlining this litigation and promoting settlement. 2

First, four of DCs claims (Second, Fourth, Fifth, and Sixth Claims) are

3 already either directly on appeal before the Ninth Circuit or precluded pending the 4 Ninth Circuits resolution of the related Siegel Appeals, as this Court noted. See 5 Order at 18 n.3 (As that [Second C]laim is related to one currently on review before 6 the Ninth Circuit, this Court declines to rule on that aspect of Defendants motion.). 7 The Courts Order granted summary judgment on DCs two remaining claims (First 8 and Third Claims). Entering a 54(b) judgment on this Order will put this entire 9 matter and all claims before the Ninth Circuit, effectively streamlining this case and 10 helping to bring this long-running litigation to a close. 11

Second, entry of a 54(b) judgment will dramatically increase the likelihood of

12 a settlement. The Shuster Termination was scheduled to take effect on October 26, 13 2013. Absent adjudication by the Circuit of the Shuster Termination, the parties 14 cannot effectively plan past 2013, as DC admitted on summary judgment and this 15 Court acknowledged. See Docket 507 (The Court, quoting DC: There is a pressing 16 need to resolve these claims now, given the imminence of the 2013 termination 17 date.). If the Order is reversed and the Shuster Termination upheld, DC would be 18 liable for copyright infringement as to all post-October 26, 2013 Superman works. 19 This strongly weighs in favor of a 54(b) judgment and immediate Circuit review. 20

The resolution of DCs First Claim regarding the validity of the Shuster

21 Termination (like the Siegels First Claim regarding the Siegel Termination that is 22 currently on appeal) is of far greater economic importance to the parties than any of 23 DCs peripheral state-law claims. Absent Circuit review of the Shuster Termination, 24 the parties cannot appropriately value this major component of their case, creating a 25 significant impediment to settlement. 26

All of the above strongly militates in favor of a 54(b) judgment permitting

27 immediate appellate review: the Shuster Termination would be resolved in a timely 28 fashion (along with the Siegel Termination), giving all parties certainty before 29 30
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DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 14 of 19 Page ID #:35158 1 October 26, 2013. Final resolution of this key issue by the Ninth Circuit would 2 promote the speedy and efficient resolution of this entire litigation by facilitat[ing] a 3 settlement on the remainder of the claims. Curtiss-Wright Corp., 446 U.S. at 8 n.2. 4 See Noel, 568 F.3d at 747; Continental Airlines, Inc., 819 F.2d at 1525. 5
4

Furthermore, the Ninth Circuits core determination of the validity or invalidity

6 of the Shuster Termination, in conjunction with its determination of the Siegel 7 Termination already on appeal, has the obvious potential to effectively dispose of 8 both this case and the closely-related Siegel litigation. 9 10

C.

DCs Reasons For Opposing Support The Entry Of Judgment

As stated, the merits of DCs Fourth, Fifth and Sixth Claims are currently

11 before the Ninth Circuit in the Anti-SLAPP Appeal and, accordingly, the Court 12 presently lacks jurisdiction to determine such claims. See Chuman v. Wright, 960 13 F.2d 104, 105 (9th Cir. 1992) (appeal on immunity issue divests the district court of 14 jurisdiction to proceed). Nonetheless, DC has stated that it opposes the entry of a 15 Rule 54(b) judgment because it wants this Court to first adjudicate, at a minimum: 16 (a) DCs pending motion for an evidentiary hearing regarding terminating sanctions 17 against Defendants on DCs Fifth Claim; (b) a motion for partial summary judgment 18 on DCs Sixth Claim; (c) a motion for partial summary judgment or short trial on 19 DCs Fourth Claim; (d) a motion for attorneys fees and costs as to DCs First and 20 Third Claims; and (e) a motion for summary judgment in the related but separate 21 22 23 24 25 26 27 28 29 30
4 5

See Whitney v. Wurtz, 2007 U.S. Dist. LEXIS 60077, at *5 (N.D. Cal. Aug. 16, 2007) (A settlement before trial would obviate the need for either trial on the merits or a subsequent appeal. Accordingly, this factor weighs heavily in favor of certification.); Wood v. GCC Bend, LLC, 422 F.3d 873, 882 n.6 (9th Cir. 2005) ([A]s the Supreme Court suggested in Curtiss-Wright, in a proper case settlement prospects might outweigh piecemeal appeal concerns.); Loral Fairchild Corp. v. Victor Co. of Japan, 931 F. Supp. 1044, 1047 (E.D.N.Y. 1996) (granting 54(b) motion in part because resolution of the decided [patent infringement] issues on appeal may facilitate settlement with the remaining defendants). 5 A Rule 54(b) judgment may be entered even if there is a pending request for attorneys fees because all attorneys fees requests are collateral to the main action. Thus, a 54(b) judgment on the merits is final and appealable even though a request for attorneys fees is unresolved. Intl Asso. of Bridge, etc. Local Union 75 v. Madison Industries, Inc., 733 F.2d 656, 659 (9th Cir. 1984).
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DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

Case 2:10-cv-03633-ODW-RZ Document 513 Filed 11/12/12 Page 15 of 19 Page ID #:35159 1 Superboy litigation (Case No. 04-08776 ODW (RZx)). See Declaration of Keith 2 Adams, Exhibit C. DC claims this can all be done in the next few months. Id. 3

In opposition to this Courts 54(b) judgment in Siegel, DC tried similar delay

4 tactics, claiming that complex accounting claims could be wrapped up in just a few 5 months (after arguing such claims required a work-by-work analysis by a special 6 master of thousands of Superman works). Siegel, Docket 655 at 2, 10-11, 13. 7

In short, DC wants to delay the resolution of this case indefinitely, tying up this

8 Courts limited resources with endless hearings, motions, and trials, a process that 9 will take many months, and more likely, years. The parties would then appeal the 10 entire case but the prospects for settlement would still turn on the Ninth Circuits 11 decision to affirm or reverse the Courts Order on the First Claim. The much more 12 efficient and effective path is to enter judgment on the First and Third Claims now, 13 so that both the parties and the Court can benefit from the Ninth Circuits decision on 14 the central issue in this case. 15 III. 16

THIS ACTION SHOULD BE STAYED PENDING APPEAL Just as it did in Siegel, this Court should stay further proceedings pending

17 appellate resolution of a Rule 54(b) judgment, especially because the remaining 18 Second, Fourth, Fifth and Sixth Claims are already before the Ninth Circuit in the 19 Siegel Appeals and the Anti-SLAPP Appeal as set forth in Section II.B, supra. 20

District Courts possess the inherent power to stay proceedings, which is

21 incidental to the power inherent in every court to control the disposition of the causes 22 on its docket with economy of time and effort for itself, for counsel, and for 23 litigants. Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 24 1066 (9th Cir. 2007) (citing Landis v. North American Co., 299 U.S. 248, 254-55 25 (1936)). See also Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857, 86326 64 (9th Cir. 1979) (A trial court may, with propriety, find it is efficient for its own 27 docket and the fairest course for the parties to enter a stay of an action before it, 28 pending resolution of independent proceedings which bear upon the case.). 29 30
9
DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

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2 stay all proceedings on the remaining claims if the interests of efficiency and fairness 3 are served by doing so. Doe v. University of Cal., 1993 U.S. Dist. LEXIS 12876, at 4 *5 (N.D. Cal. September 2, 1993) (citation omitted). See also Matek v. Murat, 862 5 F.2d 720, 732 n.18 (9th Cir. 1988) (affirming stay of proceedings after entry of 6 judgment under Rule 54(b) pending the appeal); Roe v. City of Spokane, 2008 U.S. 7 Dist. LEXIS 82528, at *17-18 (E.D. Wash. Oct. 16, 2008) (granting entry of 8 judgment under Rule 54(b) and a stay where holding a trial could waste judicial 9 resources as well as the resources of the parties and their counsel); De Aguilar v. 10 AMTRAK, 2006 U.S. Dist. LEXIS 11187, at *9-11 (E.D. Cal. March 2, 2006) 11 (staying proceedings pending appeal after entry of judgment under Rule 54(b)). 12

If this Court enters a 54(b) judgment on its Order, each of DCs Claims herein

13 will then be before the Ninth Circuit. At that point, efficiency and fairness dictate 14 that this case be stayed until such time as the Ninth Circuit has resolved such appeals. 15 16

CONCLUSION The resolution of DCs First and Third Claims by the Order, and the central

17 importance of DCs First Claim, both strongly support the entry of a Rule 54(b) 18 judgment, just as this Court did in Siegel. The entry of judgment will go a long way 19 to help bring this long-running litigation to an end. 20 21 22 23 24 25 26 27 28 29 30
10
DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

Dated: November 12, 2012

RESPECTFULLY SUBMITTED, /s/ Marc Toberoff Marc Toberoff TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel

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APPENDIX I

2 Post-January 1, 2000 cases identified by Defendants where the Ninth Circuit 3 expressly analyzed and upheld a district courts entry of a Rule 54(b) judgment: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

U.S. Fid. & Guar. Co. v. Lee Investments LLC, 641 F.3d 1126, 1140 (9th Cir. 2011); Stanley v. Cullen, 633 F.3d 852, 863-65 (9th Cir. 2011); SEC v. Platforms Wireless Intl Corp., 617 F.3d 1072, 1084-1085 (9th Cir. 2010); Noel v. Hall, 568 F.3d 743, 747 (9th Cir. 2009); AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 955 (9th Cir. 2006); SEC v. Capital Consultants LLC, 453 F.3d 1166, 1174 (9th Cir. 2006); Adidas Am., Inc. v. Payless Shoesource, Inc., 166 Fed. Appx. 268, 270 (9th Cir. 2006); Webster v. Woodford, 369 F.3d 1062, 1066 (9th Cir. 2004); Noel v. Hall, 341 F.3d 1148, 1154 n.3 (9th Cir. 2003); Kasdan, Simonds, McIntyre, Epstein & Martin v. World Sav. & Loan Assn (In re Emery), 317 F.3d 1064, 1068 (9th Cir. 2003); Lovell v. Chandler, 303 F.3d 1039, 1047 (9th Cir. 2002). Post-January 1, 2000 cases identified by Defendants where the Ninth Circuit simply noted entry of a Rule 54(b) judgment by a district court and approved it by implication: Marceau v. Blackfeet Hous. Auth., 473 F. Appx 764 (9th Cir. 2012); San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 691 (9th Cir. 2012); AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012); Natl Union Fire Ins. Co. of Pittsburgh, Pa. v. Seagate Technologies, Inc., 466 F. Appx 653, 654 (9th Cir. 2012); Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011); Jachetta v. United States, 653 F.3d 898, 903 (9th Cir. 2011); Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011); Natural Res. Def. Council, Inc. v. County of Los Angeles, 673 F.3d 880, 891 (9th Cir. 2011); Lewis v. United States, 641 F.3d 1174, 1176 (9th Cir. 2011); Natural Res. Def. Council, Inc. v. County of Los Angeles, 636 F.3d 1235, 1244 (9th Cir. 2011); Starr v. Baca, 633 F.3d 1191, 1194 (9th Cir. 2011); Destfino v. Reiswig, 630 F.3d 952 (9th Cir. Jan. 21, 2011); Flores v. Emerich & Fike, 385 Fed. Appx. 728, 730 (9th Cir. 2010); Eichler v. Sherbin, 2010 U.S. App. LEXIS 14480 (9th Cir. June 23, 2010); Brown v. Dunbar, 376 Fed. Appx. 786, 787 (9th Cir. 2010); Francis v. United States, 376 Fed. Appx. 792, 792-793 (9th Cir. 2010); Sloan v. Oakland Police Dept, 376 Fed. Appx. 738, 740 (9th Cir. 2010); Ra Med. Sys. v. PhotoMedex, Inc., 373 Fed. Appx. 784, 786 (9th Cir. 2010); Bradlow v. Castano Group, 365 Fed. Appx. 883, 885 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1221 (9th Cir. 2009); McIlwain v. Or. Dept of Revenue, 334 Fed. Appx. 99, 100 (9th Cir. 2009); City of Rialto v. W. Coast Loading Corp., 581 F.3d 865, 869 (9th Cir. 2009); SNTL Corp. v. Ctr. Ins. Co. (In re SNTL Corp.), 571 F.3d 826, 834 (9th Cir. 2009); Brookhaven Typesetting Servs. v. Adobe Sys., 332 Fed. Appx. 387, 389 (9th Cir. 2009); Ileto v. Glock, Inc., 565 F.3d 1126, 1131 (9th Cir. 2009); Northrop Grumman Corp. v. Factory Mut. Ins. Co., 563 F.3d 777, 783 (9th Cir. 2009); Darian v. Accent Builders, Inc., 342 Fed. Appx. 254, 255 (9th Cir. 2009); United States v. Rich, 317 Fed. Appx. 630, 631 (9th Cir. 2008); Ibrahim v. Dept of Homeland Sec., 538 F.3d 1250, 1254 (9th Cir. 2008); Northrop Grumman Corp. v. Factory Mut. Ins. Co., 538 F.3d 1090, 1094 (9th Cir. 2008); United States v. Park, 536 F.3d 1058, 1061 n.2 (9th Cir. 2008); Rincon Band of Luiseno Mission Indians of the Rincon Reservation v. Schwarzenegger, 290
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Fed. Appx. 60, 61 (9th Cir. 2008); Hanford Nuclear Reservation Litig. v. E.I. DuPont de Nemours & Co. (In re Hanford Nuclear Reservation Litig.), 534 F.3d 986, 999 (9th Cir. 2008); Wolkowitz v. FDIC (In re Imperial Credit Indus.), 527 F.3d 959, 965 (9th Cir. 2008); Torres v. City of Madera, 524 F.3d 1053, 1055 (9th Cir. 2008); Natl Wildlife Fedn v. Natl Marine Fisheries Serv., 524 F.3d 917, 927 (9th Cir. 2008); City of Rialto v. United States DOD, 274 Fed. Appx. 515, 516-517 (9th Cir. 2008); Williams v. Boeing Co., 517 F.3d 1120, 1126 (9th Cir. 2008); Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008); Harris v. Gulf Ins. Co., 259 Fed. Appx. 952, 953 (9th Cir. 2007); Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007); Quach v. Cross, 252 Fed. Appx. 775, 776 (9th Cir. 2007); Holland Am. Line, Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 455 (9th Cir. 2007); Natl Wildlife Fedn v. Natl Marine Fisheries Serv., 481 F.3d 1224, 1233 (9th Cir. 2007); Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007); Leonard v. City of Los Angeles, 208 Fed. Appx. 517, 519 (9th Cir. 2006); Wood v. Lundgren, 205 Fed. Appx. 599, 600 (9th Cir. 2006); DBSI/TRI IV Ltd. Pship v. United States, 465 F.3d 1031, 1036 (9th Cir. 2006); Smelt v. County of Orange, California, 447 F.3d 673, 678 (9th Cir. 2006); Veliz v. Cintas Corp., 181 Fed. Appx. 621, 622 (9th Cir. 2006); Milne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1041 (9th Cir. 2005); Karboau v. Lawrence, 135 Fed. Appx. 961, 962 (9th Cir. 2005); Menotti v. City of Seattle, 409 F.3d 1113, 1119 (9th Cir. 2005); Hambleton Bros. Lumber Co. v. Balkin Enters., 397 F.3d 1217, 1224 (9th Cir. 2005); SEC v. Capital Consultants, LLC, 397 F.3d 733, 737 (9th Cir. 2005); Gausvik v. Perez, 392 F.3d 1006, 1008-1009 (9th Cir. 2004); Easter v. Am. West Fin., 381 F.3d 948, 956 (9th Cir. 2004); MGM Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1158 (9th Cir. 2004) (reversed on other grounds, 545 U.S. 913); S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1133 (9th Cir. 2004); Bay Inst. of San Francisco v. United States, 87 Fed. Appx. 637, 639 (9th Cir. 2004); Ileto v. Glock Inc., 349 F.3d 1191, 1199 (9th Cir. 2003); City of St. Paul v. Evans, 344 F.3d 1029, 1033 (9th Cir. Alaska 2003); Bingham v. City of Manhattan Beach, 341 F.3d 939, 942 (9th Cir. 2003) (overruled on other grounds, 599 F.3d 946); Natl Assn of Home Builders v. Norton, 340 F.3d 835, 840 (9th Cir. 2003); McKesson HBOC, Inc. v. New York State Common Ret. Fund, Inc., 339 F.3d 1087, 1090 (9th Cir. 2003); Goodell v. Eoff, 73 Fed. Appx. 235, 236 (9th Cir. 2003); Modahl v. County of Kern, 61 Fed. Appx. 394, 396 (9th Cir. 2003); Forum Ins. Co. v. Comparet, 62 Fed. Appx. 151, 152 (9th Cir. 2003); Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003); Estate of Perez v. Jacobo, 57 Fed. Appx. 296, 299 (9th Cir. 2003); OConnor v. Boeing N. Am., 311 F.3d 1139, 1145 (9th Cir. 2002); Franklin v. Fox, 312 F.3d 423, 429 (9th Cir. 2002); Hall v. Raytheon Missile Sys. Co., 51 Fed. Appx. 678, 679 (9th Cir. 2002); Medical Lab. Mgmt. Consultants v. ABC, 306 F.3d 806, 809 (9th Cir. 2002); EEOC v. UPS, 306 F.3d 794, 796 (9th Cir. 2002); San Francisco Baykeeper v. Whitman, 297 F.3d 877, 879 (9th Cir. 2002); Dodge v. Johnson, 41 Fed. Appx. 138, 139 (9th Cir. 2002); In re Hanford Nuclear Reservation Litig. v. E. I. Dupont, 292 F.3d 1124, 1132 (9th Cir. 2002); Everett Assocs. v. Transcon. Ins. Co., 35 Fed. Appx. 450, 451 (9th Cir. 2002); Avid Identification Sys. v. Schering-Plough Corp., 33 Fed. Appx. 854, 855 (9th Cir. 2002); Miranda v. Clark County, 279 F.3d 1102, 1105 (9th Cir. 2002) (overruled on other grounds, 319 F.3d 465); Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001); Hall v. Raytheon Missile Sys. Co., 18 Fed. Appx. 669, 670 (9th Cir. 2001); Lonberg v. Sanborn Theaters, Inc., 2001 U.S. App. LEXIS 21065 (9th Cir. Sept. 27, 2001); Kelly v. Heron Ridge, Inc., 16 Fed. Appx. 695, 696 (9th Cir. 2001); Holley v. Crank, 258 F.3d 1127, 1133 (9th Cir. 2001) (reversed on other grounds, 537 U.S. 280); Neilson v. Chang (in Re First T.D. & Inv. Inc.), 253 F.3d 520, 523 (9th Cir. 2001); Boulder Fruit Express & Heger Organic Farm Sales v. Transp. Factoring, Inc., 251 F.3d 1268, 1270 (9th Cir. 2001); Laughon v. Intl Alliance of Theatrical Stage Emples., 248 F.3d 931, 934 (9th
12
DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

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13
DEFENDANTS MOTION FOR ENTRY OF FED. R. CIV. P. 54(B) JUDGMENT ON OCTOBER 17, 2012 ORDER

Cir. 2001); County of Tuolumne v. Sonora Community Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001); Wright v. Dunbar, 1 Fed. Appx. 656, 658 (9th Cir. 2001); White v. Lee, 227 F.3d 1214, 1226 (9th Cir. 2000); McGee v. Craig, 2000 U.S. App. LEXIS 21964, at *2-3 (9th Cir. Aug. 18, 2000); Wright v. Riveland, 219 F.3d 905, 911 (9th Cir. 2000); Arab Monetary Fund v. Hashim (In re Hashim), 213 F.3d 1169, 1171 (9th Cir. 2000); Gaulocher v. Arizona, 2000 U.S. App. LEXIS 9616 (9th Cir. May 4, 2000); Hymore v. City of Sacramento, 2000 U.S. App. LEXIS 8995 (9th Cir. May 4, 2000); DeBoer v. Pennington, 206 F.3d 857, 863 (9th Cir. 2000) (vacated on other grounds, 532 U.S. 992); Adams v. Hawaii, 2000 U.S. App. LEXIS 3292 (9th Cir. Mar. 1, 2000).

Case 2:10-cv-03633-ODW-RZ Document 513-2 #:35170 1 2 3 4 5 6 7 8 9 10 DC COMICS, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

Filed 11/12/12 Page 1 of 4 Page ID

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIV

Case No: CV 10-03633 ODW (RZx) Plaintiff, Hon. Otis D. Wright II, U.S.D.J. Hon. Ralph Zarefsky, U.S.M.J. [PROPOSED] ORDER GRANTING MOTION FOR ENTRY OF A FED. R. CIV. P. 54(b) JUDGMENT ON OCTOBER 17, 2012 ORDER GRANTING PLAINTIFF DC COMICS FIRST AND THIRD CLAIMS, AND FOR A STAY OF REMAINING CLAIMS Complaint filed: May 14, 2010 Trial Date: None Set Date: December 17, 2012 Time: 1:30 p.m. Place: Courtroom 11

vs. PACIFIC PICTURES CORPORATION; IP WORLDWIDE, LLC; IPW, LLC; MARC TOBEROFF, an individual; MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER; JEAN ADELE PEAVY, an individual; LAURA SIEGEL LARSON, individually and as personal representative of the ESTATE OF JOANNE SIEGEL, and DOES 1-10, inclusive, Defendants.

[PROPOSED] ORDER GRANTING MOTION FOR PARTIAL FINAL JUDGMENT

Case 2:10-cv-03633-ODW-RZ Document 513-2 #:35171 1 2

Filed 11/12/12 Page 2 of 4 Page ID

[PROPOSED] ORDER The Court, having reviewed and considered defendants Motion For Entry Of

3 A Fed. R. Civ. P. 54(B) Judgment On October 17, 2012 Order Granting Plaintiff DC 4 Comics First And Third Claims, And For A Stay Of Remaining Claims, plaintiffs 5 opposition thereto, all further submissions and arguments on the matter, the pleadings 6 and records on file in this action, and good cause appearing, hereby GRANTS 7 defendants motion. 8

Federal Rule of Civil Procedure 54(b) allows a district court to certify as final

9 and immediately appealable interlocutory orders that resolve certain outstanding 10 claims in a case: 11 12 13 14

When more than one claim for relief is presented in an action or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Fed. R. Civ. P. 54(b). To be eligible for entry of judgment under Rule 54(b), the

15 order must constitute an ultimate disposition of an individual claim entered in the 16 course of a multiple claims action, and there must be no just reason to delay 17 appellate review of the order until the conclusion of the entire case. Curtiss-Wright 18 Corp. v. General Electric Co., 446 U.S. 1, 7-8 (1980). The Ninth Circuit embraces a 19 pragmatic approach focusing on severability [of claims] and efficient judicial 20 administration in the construction of what constitutes a claim and whether there is 21 no just reason to delay appellate review. Continental Airlines, Inc. v. Goodyear Tire 22 & Rubber Co., 819 F.2d 1519, 1525 (9th Cir. 1987). 23

The Courts order on October 17, 2012 (Docket No. 507), granting Plaintiff

24 DC Comics (DC) motion for partial summary judgment and denying Defendants 25 cross-motion, fully resolved the First and Third Claims of DCs First Amended 26 Complaint. 27

In determining whether to enter a Rule 54(b) judgment, courts consider

28 whether certification of the claims would streamline the ensuing litigation (Noel 29 30
1 [PROPOSED] ORDER GRANTING MOTION FOR PARTIAL FINAL JUDGMENT

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Filed 11/12/12 Page 3 of 4 Page ID

1 v. Hall, 568 F.3d 743, 747 (9th Cir. 2009) (citations omitted)) or facilitate settlement 2 of the remainder of the claims. Curtiss-Wright Corp, 446 U.S. at 8 n.2. Here, entry 3 of a 54(b) judgment would streamline the issues and conserve judicial resources. 4 DCs Fourth, Fifth, and Sixth Claims are already before the Ninth Circuit (Case No. 5 11-56934), and DCs Second Claim is effectively precluded pending the Ninth 6 Circuits resolution of the Larson v. Warner Bros. Entertainment Inc. cross-appeals 7 (Case Nos. 11-55863, 11-56034). See Docket No. 507 at 18 n.3 (As that [Second 8 C]laim is related to one currently on review before the Ninth Circuit, this Court 9 declines to rule on that aspect of Defendants motion.). 10

The entry of a Rule 54(b) judgment and subsequent appeal of the Courts order

11 granting DC summary judgment on its First and Third Claims would therefore place 12 the entire matter before the Ninth Circuit, promoting judicial economy and 13 efficiency. It would also promote settlement by allowing the parties to obtain a final 14 determination on the core disputed issue in this case namely, the validity of the 15 notices of termination served on DC by the executor of Joseph Shusters Estate. 16 There is no just reason for delay. 17 18 19 20 21 22 23 24 25 26 27 28 29 30
2 [PROPOSED] ORDER GRANTING MOTION FOR PARTIAL FINAL JUDGMENT

Accordingly, IT IS HEREBY ORDERED that: 1. Defendants Motion For Entry Of A Fed. R. Civ. P. 54(B) Judgment On October 17, 2012 Order Granting Plaintiff DC Comics First And Third Claims, And For A Stay Of Remaining Claims is GRANTED. 2. Judgment in this action shall be entered on the First and Third Claims of DCs First Amended Complaint, and the October 17, 2012 Order is hereby CERTIFIED FINAL PURSUANT TO FED. R. CIV. P. 54(b). 3. Further proceedings in this case are hereby stayed pending the outcome of an appeal of this judgment, and Appeal Nos. 11-55863, 11-56034, 1156934.

Case 2:10-cv-03633-ODW-RZ Document 513-2 #:35173 1 IT IS SO ORDERED. 2 Dated: _____________ 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

Filed 11/12/12 Page 4 of 4 Page ID

___________________ Hon. Otis D. Wright II

3 [PROPOSED] ORDER GRANTING MOTION FOR PARTIAL FINAL JUDGMENT

Case 2:10-cv-03633-ODW-RZ Document 540

Filed 12/11/12 Page 1 of 2 Page ID #:36541

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DANIEL M. PETROCELLI (S.B. #097802) dpetrocelli@omm.com MATTHEW T. KLINE (S.B. #211640) mkline@omm.com CASSANDRA L. SETO (S.B. #246608) cseto@omm.com OMELVENY & MYERS LLP 1999 Avenue of the Stars, 7th Floor Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 Attorneys for Plaintiff DC Comics UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DC COMICS, Plaintiff, v. PACIFIC PICTURES CORPORATION, IP WORLDWIDE, LLC, IPW, LLC, MARC TOBEROFF, an individual, MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER, JEAN ADELE PEAVY, an individual, LAURA SIEGEL LARSON, an individual and as personal representative of the ESTATE OF JOANNE SIEGEL, and DOES 1-10, inclusive, Defendants. Case No. CV 10-3633- ODW (RZx) JUDGMENT PURSUANT TO FED. R. CIV. P. 54(B) Hon. Otis D. Wright II

[PROPOSED] RULE 54(B) JUDGMENT

Case 2:10-cv-03633-ODW-RZ Document 540

Filed 12/11/12 Page 2 of 2 Page ID #:36542

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: December 11, 2012

JUDGMENT The Courts October 17, 2012, summary judgment order (Docket No. 507) granted judgment in favor of plaintiff DC Comics (DC) on the First and Third Claims for Relief set forth in DCs First Amended Complaint (Docket No. 49). The Court concludes that judicial administrative interests, as well as the equities involved, favor entering final judgment on DCs First and Third Claims for Relief at this juncture. Therefore, IT IS ORDERED AND ADJUDGED that DCs First Claim for Relief is GRANTED as set forth in the Courts October 17, 2012, order, and the copyright termination notice served by the Estate of Joseph Shuster on November 10, 2003, is deemed invalid and ineffective. IT IS FURTHER ORDERED AND ADJUDGED that DCs Third Claim for Relief is GRANTED as set forth in the Courts October 17, 2012, order, and defendants rights-encumbering agreementsincluding the 2001 Pacific Pictures agreement, 2003 Pacific Pictures agreement, and 2008 consent agreementare deemed invalid and unenforceable under section 304(c)(6)(D) of the Copyright Act. 17 U.S.C. 304(c)(6)(D). IT IS FURTHER ORDERED AND ADJUDGED that, finding no just reason for delay, the Courts October 17, 2012, summary judgment order (Docket No. 507) is hereby certified as final, and partial final judgment is hereby entered pursuant to Federal Rule of Civil Procedure 54(b) on DCs First and Third Claims for Relief. IT IS SO ORDERED.

____________________________________ Honorable Otis D. Wright, II Judge, United States District Court

-1-

[PROPOSED] RULE 54(B) JUDGMENT

Case 2:10-cv-03633-ODW-RZ Document 541

Filed 12/11/12 Page 1 of 3 Page ID #:36543

1 TOBEROFF & ASSOCIATES, P.C. 2 3 4 5 6 7

Marc Toberoff (State Bar No. 188547) mtoberoff@ipwla.com Keith G. Adams (State Bar No. 240497) kgadams@ipwla.com Pablo D. Arredondo (State Bar No. 241142) parredondo@ipwla.com David Harris (State Bar No. 255557) dharris@ipwla.com 22337 Pacific Coast Highway #348 Malibu, California 90265 Telephone: (310) 246-3333 Fax: (310) 246-3101 Peary, as personal representative of the

8 Attorneys for Defendants Mark Warren 9 Estate of Joseph Shuster, Jean Adele Peavy, 10 as personal representative of the Estate of

and Laura Siegel Larson, individually and Joanne Siegel

11

UNITED STATES DISTRICT COURT


12

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION Case No: CV 10-03633 ODW (RZx) DC COMICS, 14 Plaintiff, Hon. Otis D. Wright II, U.S.D.J. vs. Hon. Ralph Zarefsky, U.S.M.J. 15
13 16 PACIFIC PICTURES CORPORATION; 17 IP WORLDWIDE, LLC; IPW, LLC;

MARC TOBEROFF, an individual;

NOTICE OF APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Complaint filed: May 14, 2010 Discovery Cutoff: None Set Trial Date: None Set

18 MARK WARREN PEARY, as personal 19 representative of the ESTATE OF 20 PEAVY, an individual; LAURA 21 SIEGEL LARSON, individually and as

JOSEPH SHUSTER; JEAN ADELE

personal representative of the ESTATE


22 OF JOANNE SIEGEL, 23 and DOES 1-10, inclusive, 24 25 26 27 28

Defendants.

NOTICE OF APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Case 2:10-cv-03633-ODW-RZ Document 541

Filed 12/11/12 Page 2 of 3 Page ID #:36544

1 KENDALL BRILL & KLIEGER LLP 2 3 4 5 6

Richard B. Kendall (90072) rkendall@kbkfirm.com Laura W. Brill (195889) lbrill@kbkfirm.com Nicholas F. Daum (236155) ndaum@kbkfirm.com 10100 Santa Monica Blvd., Suite 1725 Los Angeles, California 90067 Telephone: 310.556.2700 Facsimile: 310.556.2705 Pacific Pictures Corporation, IP Worldwide,

7 Attorneys for Defendants Marc Toberoff, 8 LLC, and IPW, LLC 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

NOTICE OF APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Case 2:10-cv-03633-ODW-RZ Document 541

Filed 12/11/12 Page 3 of 3 Page ID #:36545

1 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 2

Notice is hereby given that MARK WARREN PEARY, as personal

3 representative of the ESTATE OF JOSEPH SHUSTER, JEAN ADELE PEAVY, 4 LAURA SIEGEL LARSON, individually and as personal representative of the 5 ESTATE OF JOANNE SIEGEL, PACIFIC PICTURES CORPORATION, IP 6 WORLDWIDE, LLC, IPW, LLC, and MARC TOBEROFF, defendants in the above7 named case, hereby appeal to the United States Court of Appeals for the Ninth 8 Circuit from the final judgment of the district court, filed on December 11, 2012 and 9 entered in this case on December 11, 2012 at Docket No. 540 by the Honorable Otis 10 D. Wright, II in the United States District Court for the Central District of California, 11 pursuant to Federal Rule of Civil Procedure 54(b), based on the district courts 12 October 17, 2012 order (Docket No. 507) and December 5, 2012 order (Docket No. 13 533). 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1

December 10, 2012

RESPECTFULLY SUBMITTED, /s/ Marc Toberoff TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants Mark Warren Peary et al. /s/ Laura W. Brill KENDALL BRILL & KLIEGER LLP Attorneys for Defendants Marc Toberoff, et al.

NOTICE OF APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT