UNITED STATES DISTRICT COURT DISTRICT OF OREGON. Plaintiff, Defendants.

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1 Kenneth R. Davis, II, OSB No William T. Patton, OSB No SW Second Avenue, Suite 2100 Portland, Oregon Telephone: Facsimile: Attorneys for Defendants Richard L. Gabriel, Admitted Pro Hac Vice HOLME ROBERTS & OWEN LLP Attorneys for Defendants Atlantic Recording Corporation, Priority Records LLC, Capitol Records, Inc., UMG Recordings, Inc. BMG Music, Recording Industry Association of America, and Settlement Support Center, LLC Thomas M. Mullaney, Admitted Pro Hac Vice Law Offices of Thomas M. Mullaney Attorneys for Defendant SafeNet, Inc. *Additional Attorney Information Listed at Signature Page. UNITED STATES DISTRICT COURT DISTRICT OF OREGON TANYA ANDERSEN, v. ATLANTIC RECORDING CORPORATION, et al., Plaintiff, Defendants. Case No. 3:07-CV-934-BR Defendants MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND EXTENSION OF TIME TO RESPOND TO PLAINTIFF S SECOND AMENDED COMPLAINT PAGE 1 - MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND

2 Defendants respectfully submit the following memorandum in support of their motion for (1) an order setting a status conference and (2) an order granting Defendants an extension of time to answer or otherwise respond to Plaintiff s Second Amended Complaint. INTRODUCTION Plaintiff has not complied with the Court s order to file a Second Amended Complaint in accordance with Rule 8. Nor has she complied with the Court s detailed instructions as to certain specific claims (e.g., pleading what each Defendant did that allegedly violates the UTPA, pleading reliance on specific misrepresentations, and not pleading the fact of whether Defendants invaded Plaintiff s computer in the alternative). Instead, Plaintiff has filed a massive complaint that is anything but the short and plain statement envisioned by Rule 8 and ordered by this Court. The document is now 108 pages with 353 paragraphs. It not only does not limit the causes of action at issue, but rather it adds several new claims. Nor does it clarify what facts support which claims or what claims are asserted against which Defendants. Instead, one of the ways in which the Second Amended Complaint appears to try to remedy the deficiencies of the First Amended Complaint is by adding significant verbiage that has little to do with the current Plaintiff and that relates to matters, even if true, caused this Plaintiff no harm. And, although short on specific allegations relevant to the claims that it attempts to plead, the document is long on rhetoric, hyperbole, and scandalous allegations that appear calculated not to state viable causes of action but rather to garner maximum press coverage, which it has done. Plaintiff s Second Amended Complaint ignores this Court s clear orders and instructions. At the February 11, 2008, hearing, the Court repeatedly instructed Defendant to file a plain and concise complaint. Instead, Plaintiff has filed a complaint that is neither plain nor concise by any definition or measure. The Court also provided Plaintiff with very clear instructions on the need to amend the complaint with respect each of the claims asserted so that it was clear what facts pertained to what claims against which Defendants. Rather than complying with the PAGE 2 - MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND

3 Court s Order, however, Plaintiff filed a Second Amended Complaint that still fails to allege the essential elements of her claims. Defendants are cognizant of this Court s expressed desire to avoid further Rule 12 motions, as well as the Court s order that the parties meet and confer to determine a case management plan that would allow this case to proceed efficiently and effectively. Defendants respectfully believe that the Court s position was premised on Plaintiff s complying with the Court s orders and instructions. Had Plaintiff complied, Defendants believe that they could have proposed the type of efficient case management plan that the Court envisioned. Because Plaintiff did not comply, however, Defendants find themselves to be hamstrung, because they still do not know what facts are alleged in support of which claims or as to which Defendants. 1 Nor have the parties discussions as to how best to manage this case been productive. Plaintiff wants to take broad discovery, apparently including fact-finding regarding hundreds of cases outside of hers, from all Defendants regarding all of the purported claims simultaneously. Defendants, on the other hand, seek an approach that would allow the Court to narrow the case by carving out a large number of the claims that should be amenable to a prompt resolution with limited or no discovery. In order to facilitate such a whittling process, however, Defendants believe that Plaintiff should be required to provide a proffer for each of the claims, providing a short and plain statement as to what exactly she is claiming, against whom, and the factual basis for such claims. It is in light of the foregoing, Defendants now seek a conference with the Court to discuss the most efficient and expeditious way to move this case forward. 1 For purposes of preserving the record, Defendants note that, but for the Court s admonition regarding further Rule 12 motions, Defendants would have sought to file such a motion here. PAGE 3 - MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND

4 DISCUSSION I. Background. On June 22, 2007, Plaintiff filed a complaint against Defendants, followed thereafter by a First Amended Complaint on August 15, Plaintiff asserted thirteen claims for relief against Defendants. On September 12, 2007, Defendants filed a motion to dismiss each of Plaintiff s claims pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted. (Doc. No. 13.) The Court held a hearing on Defendants motion to dismiss on February 13, 2008, at which this Court granted Defendants motion in its entirety. (Doc. No. 48.) Specifically, the Court dismissed Plaintiff s claim for copyright misuse with prejudice and dismissed the remaining twelve claims without prejudice and with leave to amend consistent with the Court s instructions. (Doc. No. 48; see also Transcript of Feb. 11, 2008 Hearing ( Trans. ), p. 62, l , attached as Ex. A.) In granting Plaintiff leave to amend her claims, the Court gave Plaintiff detailed instructions with regard to the amended pleading as a whole, as well as with regard to specific claims. For example, the Court stated the following with regard to the pleading in general: I m very much looking forward to an amended pleading that sets forth, consistent with Rule 8, a plain-and-concise statement of the facts separately stated, claim to claim, with a minimum amount of incorporating by reference, so that it s clear that when we have these attacks, we we ve got the elemental structure in place. (Trans., p. 62, l. 25 p. 63, l. 5) [W]ith respect to all of the things you re trying to address... I think you need to do it again. So that Rule 8, which requires a plain-and-concise statement of a claim, separately stated, is satisfied. (Id. at p. 11, l. 2-6.) And so as to each claim there needs to be alleged enough facts so that I can tell that the elements are there. (Id. at p. 11, l ) [Plaintiff s] Second Amended Complaint must satisfy Federal Rule of Civil Procedure 8 with respect to each claim. (Doc. No. 48 at 5) With regard to specific claims, the Court told Plaintiff the following: PAGE 4 - MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND

5 Oregon Unlawful Trade Practices Act: Fraud: You need to specify. What was it, which defendant did, that violated what part of the Unlawful Trade Practices Act? (Trans., p. 25, l. 6-7) A fraud claim has to comply with Rule 9(b)... 9(b) requirements are very clear, and you didn t meet them, and you have to meet them... Fraud, under Oregon law, requires the knowing misrepresentation of a material fact,... on which the plaintiff reasonably relies to her detriment... I don t see that you ve alleged facts showing reliance by the plaintiff on a misrepresentation the defendants knew were false and was material that caused her harm. (Id. at p. 17, l ) Computer Fraud and Abuse Act/Invasion of Privacy/Trespass to Chattels: You can t plead hypothetical facts. You can plead alternatives. You can plead that they did access, and it violated. But you can t plead hyperbole or a hypotheses... you have to have a factual basis to allege it. You can t allege if A then B. You have to allege A. (Id. at p. 21, l ) The theory about intrusion upon seclusion is also subject to the same problem. If there was no intrusion, then there can t be an intrusion upon seclusion, invasion of privacy claim. (Id. at p. 23, l ) [T]respass to chattels, has the same problem as Claim 7. Because the common law trespass to chattel claim is premised on an actual intrusion, about which I think there isn t any evidence at the moment. (Id. at p. 23, l ) It was with the above instructions, as well as many others, that the Court granted Plaintiff leave to re-file her complaint in a manner, above all else, consistent with the mandate of Rule 8 that a claim for relief must contain a short and plain statement of the claim. Fed. R. Civ. P. 8(b) (emphasis added). On March 14, 2008, despite the Court s clear and consistent instructions, Plaintiff filed her Second Amended Complaint, which is 108 pages comprised of 353 paragraphs. Plaintiff asserts eighteen claims, several of which are entirely new, and none of which have a basis in law or fact. This Complaint, which is neither a short nor plain statement of the claims asserted, does not clarify, but rather serves to further confuse and obfuscate the issues before the Court. Moreover, Plaintiff has failed to comply with even one of the claim-specific directives set forth PAGE 5 - MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND

6 above. Specifically, Plaintiff has not identified which defendant violated what part of the Oregon Unfair Trade Practices Act ( OUTPA ), does not allege reliance on a material representation sufficient to support her fraud or negligent misrepresentation claims, and does not allege invasion of her computer as required to support her claims for violation of the Computer Fraud and Abuse Act ( CFAA ), invasion of privacy, and trespass to chattels. Indeed, during the February 13, 2008 hearing, counsel for Plaintiff conceded that Plaintiff had no evidence to support such a claim, and reiterates this reality in the allegations in support of each of these claims, stating, [Plaintiff] now knows that the computer files that the Defendants falsely claimed to have found on her computer were never in fact there. (Trans., p. 22, l. 2-8; Doc. No. 50 at 9.242, 9.249, ) In addition to the foregoing, Plaintiff s Complaint is rife with demonstrably false and baseless allegations, 2 and seems designed to serve as a basis for Plaintiff to seek broad, almost limitless discovery pertaining to hundreds of cases brought by the Record Company Defendants against individuals other than Plaintiff. As the Court made clear, however, any allegations relevant to a potential class of plaintiffs will not be considered until the claims that Plaintiff can bring on her own are established. (Trans., p. 5, l ) II. A Status Conference And Additional Time To Respond To Plaintiff s Complaint Are Warranted And Appropriate Here. The Ninth Circuit has repeatedly held that dismissal is not only within a court s discretion, but appropriate where a complaint is verbose, confused and redundant. Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir. 1965) (affirming dismissal without leave to re-file of a second amended complaint where the true substance, if any, [was] well disguised); see also Agnew v. Moody, 330 F.2d 868, (9th Cir. 1964) (upholding dismissal with prejudice of an amended 2 Based on the numerous false and baseless allegations contained in Plaintiff s Complaint, Defendants are preparing a letter and motion pursuant to Fed. R. Civ. P. 11. PAGE 6 - MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND

7 complaint that did not comply with the district court s order to re-plead in compliance with Rule 8(a) and extended over 55 pages). Indeed, under very similar circumstances, complaints significantly shorter than that filed by Plaintiff have been dismissed for failure to comply with the district court s order granting leave to amend and Rule 8. See Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985), cert. denied, 474 U.S (1985) (affirming dismissal of a 70-page confusing and conclusory complaint); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671 (9th Cir. 1981) (dismissing a 48-page conspiracy complaint with prejudice for the failure of the plaintiff to comply with Rules 8(a) and 8(e), concluding that the district court properly found the complaint to be verbose, confusing and conclusory); Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir. 1980) (upholding dismissal of a 30-page complaint where discovery [would] be necessary to find grounds for an action, and counsel was attempting to write a confusing statement of a non-existing cause of action rather than a short plain statement of the claim... or a pleading containing simple, concise, and direct averments ). Accordingly, Defendants respectfully submit that the Court would be well within its purview to dismiss Plaintiff s Second Amended Complaint, or portions thereof, filed with disregard for both Rule 8 and the Court s express instructions. Should this Court allow Plaintiff s Second Amended Complaint to stand, however, Defendants respectfully ask this Court to set a status conference to assist the parties in developing a case management plan and further request an additional 20 days from the date of the requested status conference (or such other time as the Court may order after the conference), or from the denial of Defendants current motion, to file a responsive pleading. During the February 13, 2008 hearing, the Court ordered the parties to submit, by April 7, 2008, a Joint Case Management Plan. (Trans., p. 64, l. 3-5.) Preliminary conversations with counsel for Plaintiff indicate that the parties are not in agreement with regard to how best to proceed. Specifically, Plaintiff s counsel has made clear that Plaintiff would like to start broadranging discovery on all claims in this case (and relating to facts alleged and claims made in PAGE 7 - MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND

8 hundreds of other cases brought by the recording industry) immediately. 3 Plaintiff s counsel has indicated that, in Plaintiff s view, there is no way to carve out specific issues. For their part, Defendants believe that the discovery that Plaintiff envisions is not proper, given that discovery here should be limited to this case alone (i.e., to harm allegedly suffered by this Plaintiff as a result of conduct by Defendants in the underlying litigation) and to claims that are sufficiently pled and properly before the Court in the first instance. See DM Research Inc. v. College of American Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) ( [T]he price of entry, even to discovery, is for plaintiff to allege a factual predicate concrete enough to warrant further proceedings, which may be costly and burdensome. Conclusory allegations in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing expedition. ); Grosz v. Lassen Community College District, No. 2:07-cv-0697-FCD/CMK, 2007 WL , at * 2 (E.D. Cal. Dec. 11, 2007) ( Rule 8(a) does not permit plaintiffs to file a complaint premised solely on generalized allegations of discrimination in order to justify a fishing expedition into potential violations by defendants. ). Moreover, Defendants advised Plaintiff s counsel that they preferred to structure case management in such a way as to deal with issues that can be resolved quickly and with limited discovery first. This is fully consistent with the discussion that the Court and the parties had at the February 13, 2008 hearing. Specifically, when Defendants counsel raised this precise issue at the hearing, the Court stated that it was all for staging this and that, if there s a different approach [i.e., other than filing an answer] that would get us to a dispositive hearing on a record that works, I m open. (Trans., p. 51, l. 19 p. 53, l. 18.) Defendants are unable to propose such a procedure, however, based on the current state of the pleadings, because they still do not know 3 In fact, over a week before filing her Second Amended Complaint, Plaintiff complained to the press that Defendants were obstructing her litigation efforts by not participating in broad-ranging discovery. Of course, any discussion of a discovery plan at that point was premature, since the amended complaint had yet to be filed. PAGE 8 - MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND

9 what claims are being made against what Defendants and based on what facts. Defendants believe that the following process would allow the parties to develop a case management plan that would be the most efficient and cost-effective for all parties in this case, and that would be in compliance with the Court s instructions to the parties: 1. Defendants believe that the vast majority of Plaintiff s eighteen claims can be resolved quickly with little or no discovery. These claims include Plaintiff s claims for negligence/negligence per se, intentional infliction of emotional distress, federal and state RICO violations, abuse of legal process, defamation, false light, invasion of privacy, CFAA violation and trespass to chattels. In order to determine whether Defendants require any discovery prior to filing motions for summary judgment, and in order to allow Defendants to understand what precisely is being asserted, Plaintiff should prepare and submit brief outlines (preferably less than two pages each) of the specific facts alleged in support of each claim as to each Defendant. 2. Based on these proffers, Defendants will advise Plaintiff and the Court what, if any, discovery Defendants would need prior to filing a dispositive motion. 3. The Court would schedule a telephonic status conference to address case management, in light of Plaintiff s proffers and Defendants proposal as to summary judgment. 4. Once these dispositive motions are determined, if any claims remain, the parties would set an expedited discovery schedule on any remaining claims. Defendants are interested in moving this matter forward as expeditiously as possible and in compliance the Court s instructions and orders and believe, in light of the nature of Plaintiff s Second Amended Complaint, that a status conference to discuss the foregoing is the best way to accomplish those goals. In the interim, Defendants request an extension of time to respond to the Second Amended Complaint until 20 days from the date of the requested status conference (or such other time as the Court may order after the conference), or from the denial of Defendants current motion, should the Court deny the motion. PAGE 9 - MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND

10 CONCLUSION Defendants respectfully request a status conference with the Court to discuss the issues and proposal set forth herein. Defendants further request an additional 20 days from the date of the requested status conference (or such other time as the Court may order after the conference), or from the denial of Defendants current motion, to file a responsive pleading. DATED: March 27, 2008 By /s/ William T. Patton Kenneth R. Davis, II, OSB No William T. Patton, OSB No (503) Attorneys for Defendants Richard Gabriel, Admitted Pro Hac Vice richard.gabriel@hro.com HOLME ROBERTS & OWEN LLP 1700 Lincoln Street, Suite 4100 Denver, Colorado Telephone: (303) Facsimile: (303) Attorneys for Defendants Atlantic Recording Corporation, Priority Records LLC, Capitol Records, Inc., UMG Recordings, Inc., BMG Music, Recording Industry Association of America, and Settlement Support Center, LLC Thomas M. Mullaney, Admitted Pro Hac Vice tmm@mllaw.org Law Offices of Thomas M. Mullaney 708 Third Avenue, Suite 2500 New York, New York Telephone: (212) Facsimile: (212) Attorneys for Defendant SafeNet, Inc. PAGE 10 - MEMORANDUM IN SUPPORT OF MOTION FOR STATUS CONFERENCE AND