TO THE COURT, THE PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on November 3, 2014 at 10:00 a.m., or as soon thereafter as counsel may be heard by the above-entitled Court, Plaintiff Masterfile Corporation (Plaintiff or Masterfile) will and hereby does move for an order vacating the judgment in this case. This motion is based on this Notice of Motion and Motion and the accompanying Memorandum of Points and Authorities, all pleadings and submissions on file in this action, and upon such other matters as may be presented to the Court at or before the time of the hearing.
Dated: September 29, 2014 /s/ Steven M. Weinberg STEVEN M. WEINBERG MICHAEL J . SALVATORE HOLMES WEINBERG, PC 30765 Pacific Coast Highway, Suite 411 Malibu, California 90265 Tel: (310) 457-6100 Fax: (310) 457-9555 Email: sweinberg@holmesweinberg.com msalvatore@holmesweinberg.com
Attorneys for Plaintiff Masterfile Corporation
Case 2:12-cv-00850-R-E Document 40 Filed 09/29/14 Page 2 of 5 Page ID #:678
MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND On August 10, 2012, summary judgment (the J udgment) on this action was entered in favor of Defendants Chaga International (Chaga), Steve Gould (Gould), and Michael Tidd (Tidd) (collectively, Defendants) against Plaintiff. [Dkt. 32]. The J udgment was based on the courts agreement with the rationales in two cases that involved the same issue as that in this case the registration of collections of photographs under a single US Copyright Office registration number. Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 2010 WL 3785720 (D. Alaska Sept. 21, 2010); and Bean v. Houghton Mifflin Harcourt Pub. Co., 2010 WL 3168624 (D. Ariz. Aug. 10, 2010) [Dkt. 33, at page 7, Conclusion of Law No. 9]. On March 18, 2014, the United States Court of Appeals, Ninth Circuit, decided Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 747 F.3d 673 (9th Cir. 2014), rejecting the same rationale on which the J udgment in this case was based, and accordingly reversing the Alaska Stock district courts decision. . Plaintiff now brings this Motion respectfully requesting that the J udgment be vacated in light of the Ninth Circuits decision in Alaska Stock. II. ARGUMENT Under Federal Rule of Civil Procedure 60(b)(5), the court may relieve a party or its legal representative from a final judgment if it is based on an earlier judgment that has been reversed or vacated. Fed. Rule Civ. Proc. 60(b)(5). See Voggenthaler v. Maryland Square LLC, 2013 WL 6328001 (D. Nevada Dec. 4, 2013) (vacating judgment in light of Ninth Circuit holding). FRCP 60(b)(5) further states that: [a] motion under Rule 60(b) must be made within a reasonable time. Fed. Rule Civ. Proc. 60(b)(5). Case 2:12-cv-00850-R-E Document 40 Filed 09/29/14 Page 3 of 5 Page ID #:679
On March 18, 2014, the Ninth Circuit reversed the district courts decision in the Alaska Stock case, stating with respect to the rationale on which summary judgment in this action was based, that: The stock agencies through their trade association worked out what they should do to register images with the Register of Copyrights, the Copyright Office established a clear procedure and the stock agencies followed it. The Copyright Office has maintained its procedure for three decades, spanning multiple administrations. The livelihoods of photographers and stock agencies have long been founded on their compliance with the Registers reasonable interpretation of the statute. Their reliance upon a reasonable and longstanding administrative interpretation should be honored. Denying the fruits of reliance by citizens on a longstanding administrative practice reasonably construing a statute is unjust. Alaska Stock, 747 F.3d at 686. In light of the fact that the Alaska Stock decision was reversed and remanded to the District Court with the above instruction, the J udgment in this case is based on a decision that has been reversed by the Ninth Circuit. The Ninth Circuits decision in Alaska Stock is binding on this Court. Further, Plaintiffs Motion to Vacate J udgment has been brought within a reasonable time, less than one year after the Ninth Circuits decision in Alaska Stock. Accordingly, Plaintiff respectfully requests that for these reasons, the J udgment in this matter be vacated in its entirety. Defendants counsel Oscar Michelen has advised the undersigned counsel for Plaintiff that because of certain complications relating to the estate of Defendant Michael Tidd, now deceased, he lacks authority to stipulate to this Motion on behalf of the Defendants, and will provide the Court with an explanation relating to this issue.
III. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court vacate its J udgment in this matter. Case 2:12-cv-00850-R-E Document 40 Filed 09/29/14 Page 4 of 5 Page ID #:680