Skidmore v. Led Zeppelin - motion to compel Page and Plant.pdf

8/16/2019 Skidmore v. Led Zeppelin - motion to compel Page and Plant.pdf

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1PLAINTIFF’S MOTION COMPEL TRIAL TESTIMONY OF

JAMES PATRICK PAGE AND ROBERT PLANT AND JOHN PAUL JONES

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Francis Malofiy, Esq.Francis Alexander, LLC280 N. Providence Rd. | Suite 1Media, PA 19063T: (215) 500-1000; F: (215) 500-1005

E: [email protected] Attorney for Plaintiff

Glen L. Kulik, Esq. (SBN 082170)Kulik Gottesman & Siegel LLP15303 Ventura Blvd., Suite 1400Sherman Oaks, CA 91403T: (310) 557-9200; F: (310) 557-0224E: [email protected]

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

MICHAEL SKIDMORE, as Trustee forthe RANDY CRAIG WOLFE TRUST,

Plaintiff,

v.

LED ZEPPELIN; JAMES PATRICKPAGE; ROBERT ANTHONY PLANT;JOHN PAUL JONES; SUPER HYPEPUBLISHING, INC.; WARNER MUSICGROUP CORP., Parent of

WARNER/CHAPPELL MUSIC, INC.;ATLANTIC RECORDINGCORPORATION; RHINOENTERTAINMENT COMPANY,

Defendants.

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

Hon. R. Gary Klausner

PLAINTIFF’S MOTION TO

COMPEL ATTENDANCE OF

JAMES PATRICK PAGE AND

ROBERT PLANT AND JOHN PAU

JONES

[Filed concurrently with (Proposed)Order]

Case 2:15-cv-03462-RGK-AGR Document 220 Filed 05/17/16 Page 1 of 14 Page ID #:5665


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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Plaintiff Michael Skidmore, Trustee for th

Randy Craig Wolfe Trust, hereby moves this Court to compel the trial testimony o

defendant James Patrick Page, defendant Robert Anthony Plant, and John PauJones.

This motion is being filed pursuant to the Court’s instructions at the pretri

conference held on April 25, 2016.

DATED: May 17, 2016 FRANCIS ALEXANDER, LLC

/s/ Francis Alexander Malofiy

Francis Alexander MalofiyAttorneys for Plaintiff



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MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiff served subpoenas and notices to appear and testify at trial fo

Defendants James Patrick Page, Robert Anthony Plant, and witness John Paul Jone

on their counsel.See

Exhibit 1. However, Defendants and their counsel, as well Mr. Jones, have refused to confirm that they will appear despite having bee

subpoenaed and noticed. Furthermore, as Plaintiff’s counsel has repeatedly mad

clear to Defendants, there is no way Plaintiff can accurately account for an

schedule his witnesses and deposition designations—and present his case-in-chi

effectively—if he does not know whether the three main Defendants and witnesse

will be present:

Additionally—and especially now because of the timeconstraints of the trial—I repeat myself in asking that for purposes ofscheduling witnesses and preparing for trial that you share with mewhether or not Mr. Page, Mr. Plant, and Mr. Jones will appear inCourt on Tuesday, June 14, 2016 at 9 am. If they are not to appear onthis date and time, please tell me definitively a date and time whenthey will be present in Court—if at all.

As you are aware, we noticed and subpoenaed these defendants

and it is nearly impossible to designate what portions of theirtestimony will be necessary without knowing if Mr. Page, Mr. Plant,or Mr. Jones will appear in Plaintiff’s case in chief. I therefore kindlyreiterate my request to you as their counsel to inform me whether ornot they will appear as noticed and subpoenaed.

See Exhibit 2 – Emails Between Counsel (emphasis added). Not only does Defens

counsel refuse to state what dates and times they will attend, if at all, but they al

maintain that they are outside the power of this Court to compel their attendanc

Plaintiff disagrees and therefore asks this Court to compel their presence.

Jimmy Page and Robert Plant, with the aid of defense counsel, want to dicta

the court’s schedule, completely disregarding the difficulties in presenting multip

fact and expert witnesses in a narrow band of time of approximately six hours. Th

lack of common courtesy from defense counsel is, frankly, astonishing. Defendan



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are acting as if this is a concert where their celebrity status allows them to decid

when they will appear.

DEFENDANTS CONSENTED TO PERSONAL JURISDICTION I

CALIFORNIA AND THEIR ATTENDANCE SHOULD BE COMPELLE

PURSUANT TO THE COURT’S INHERENT POWERS

Defendants and Jones ignore that when they had this matter transferred from

the Eastern District of Pennsylvania to the Central District of California the

explicitly consented to personal jurisdiction in Los Angeles. The Honorable Jua

Sanchez noted this consent to jurisdiction no less than four times in his opinion an

order transferring the case:

. . . all Defendants consent to jurisdiction and venue [in theCentral District of California]. If the Court finds jurisdiction andvenue are proper in this District, all Defendants ask the Court totransfer the case to the Central District of California “[f]or theconvenience of parties and witnesses” and “in the interest of justice” pursuant to 28 U.S.C. § 1404(a).

See Order and Opinion of The Honorable Juan Sanchez ( ECF No. 54), at p.2, 9, 1

(emphasis added). Jimmy Page declared in support of that motion:



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See Declaration of James Patrick Page (ECF No. 36-2, at p.2). John Paul Jon

declared in support of the motion to transfer:

See Declaration of John Paul Jones (ECF No. 36-3, at p.2). And Robert Pla

declared:

See Declaration of Robert Anthony Plant (ECF No. 36-4, at p.2).

In addition, the Court has the inherent authority to control the trial, i

calendar, the witnesses, the presentation of evidence, and the order of evidence, a



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to ensure a fair, efficient, and effective trial so as to do substantial justice. Th

Supreme Court of the United States observes that:

[The Court’s inherent powers are] governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs

so as to achieve the orderly and expeditious disposition of cases." Linkv. Wabash R. Co., 370 U. S. 626, 630-631 (1962).

Chambers v. Nasco, Inc., 501 US 32, 43-50 (1991) (stating that federal court has th

inherent power to issue orders concerning the participants and issues before it

Seattle Times Co. v. Rhinehart, 467 US 20, 35-36 (1984).

Defendants and Jones wanted this case in Los Angeles; they cannot now clai

they reside outside of Los Angeles and California and rely on geographic limi

described in Rule 45. As Plaintiff’s counsel stated in the pre-trial conferenc

hearing:

MR. MALOFIY: One issue is that in this case, defendants hadagreed to personal jurisdiction of this courtrather than the court of Philadelphia. It wastransferred from the Eastern District ofPhiladelphia to this court, and now defendantsare refusing to appear in this court in the claims

against them. Plaintiff intended to, at all times, bring them in plaintiff's case-in-chief as if oncross, and defendants are telling me, defensecounsel, that they're outside the power of thiscourt and they won't appear. If that's the case, plaintiff would be asking for, at the very least, anegative inference or default if they're notgoing to appear in this court.

THE COURT: Nothing has to be to argued. He's just saying

that that's what he's going to do.

MR. ANDERSON: Thank you, Your Honor.

THE COURT: Anything else? If you're asking for rulingstoday, counsel, anything you want, put it inwriting and I'll rule on it, and those are thingsthat should be addressed before court because



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they may not be timely. So there -- and Iappreciate you letting everybody know, myself and counsel know, that this may be somethingyou'll be raising.

MR. MALOFIY: It is an issue also because in preparation for thecase --

THE COURT: Okay.

MR. MALOFIY: -- and to be conscience of the Court's calendar,the witnesses -- calendaring of the witnesses as well, if we're going to be using designations,we need to know if they're going to appear.And if they're not going to appear, we're goingto spend quite a bit of time chopping up thevideos for time of trial, and that's a concern thatwe have. I wanted to raise it with the Court because it deals with calendaring and it dealswith scheduling. That's just something I wantedto make the Court aware of.

THE COURT: I appreciate that, and go ahead and put it inwriting. I appreciate that, I'm just not going to be ruling on anything today on it.

See Exhibit 3 – Pre-Trial Conference Transcript, at p.20:19 to 22:3. Defendants hav

essentially waived their right and ability to rely on the limits in Rule 45.

DEFENDANTS HAVE REFUSED TO CLARIFY WHEN DEFENDANT

PLANT AND PAGE, AND WITNESS JONES, WILL APPEAR

Plaintiff’s counsel has been contacting defense counsel since April 14, 2016—

and again on April 21, 2016, and May 5, 2016—attempting to get confirmation th

Defendants and Jones are indeed appearing for trial and will be there for Plaintiff

case in chief—but defense counsel has only coyly stated that he believes they will b

there “but with them coming from England we cannot guarantee the day they wi

arrive.” See Exhibit 2 – May 6, 2016 Email. To be clear: flights departures and flig

times from London to Los Angeles are not mysteries. Barring exigent circumstance

there is no reason why defense counsel cannot make a firm representation the



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clients will be in the courtroom on a certain day. For Jones, his counsel has state

“we expect him to testify as a defense witness,” again refusing to give any definitiv

statements. Id. (emphasis added). For the sake of certainty, Plaintiff asks that th

attendance of Mr. Page and Mr. Plant be compelled by the court for June 14, 201and that Mr. Jones’s attendance also be mandated. Plaintiff has, for instanc

represented to Defendants that he will be calling Mark Andes as witness—on th

basis of Plaintiff’s representation Defendants have declined to rely on designation

from Andes’ deposition as they know he will appear. See Exhibit 2 - May 6, 201

email. Such certainty and courtesy has not been reciprocated.

The rhetorical uncertainty being perpetuated by defense counsel, designed

keep Plaintiff guessing whether the witnesses will actually appear, are causing maj

headaches and prejudicing Plaintiff’s case. Consider, Plaintiff has only ten hou

around which to arrange his entire case, and furthermore has to decide what vide

deposition designations will be used. By not simply confirming the days th

Defendants will be present for trial, defense counsel is forcing Plaintiff not only

designate much more deposition testimony than probably will be necessary, but

also causing Plaintiff to have to edit the concomitant videos of the depositionEditing video depositions takes a large amount of time and is very expensive.

Plaintiff’s counsel wrote to defense counsel on May 6, 2016 (and sever

times prior to that as well):

Attached please find Plaintiff’s Designations. We intend to usethese designations including the deposition video at time of trial. Wewill also be using defendants declarations, answers, and discoveryresponses in our case in chief (including but not limited to: Page,Plant, and Jones, the corporate defendants, and dismissed defendants).

Additionally—and especially now because of the timeconstraints of the trial—I repeat myself in asking that for purposes ofscheduling witnesses and preparing for trial that you share with mewhether or not Mr. Page, Mr. Plant, and Mr. Jones will appear inCourt on Tuesday, June 14, 2016 at 9 am. If they are not to appear onthis date and time, please tell me definitively a date and time when



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they will be present in Court—if at all.

As you are aware, we noticed and subpoenaed these defendantsand it is nearly impossible to designate what portions of theirtestimony will be necessary without knowing if Mr. Page, Mr. Plant,

or Mr. Jones will appear in Plaintiff’s case in chief. I therefore kindlyreiterate my request to you as their counsel to inform me whether ornot they will appear as noticed and subpoenaed.

Because you have failed to work with me in regards toscheduling the party opponents for trial, Plaintiff reserves all rights,including but not limited to asking the Court for a negative inference, precluding defendants from testifying in defendants case in chief, andfor a default. Plaintiff additionally, reserves the right to supplementor modify the attached designations.

See Exhibit 2 – Emails. In response to this email, defense counsel refused to giv

firm representations on attendance and feigned ignorance about why not confirmin

the presence of their clients could cause problems for Plaintiff scheduling witnesse

and designating testimony. Id.

Again, Plaintiff asks that defendants Plant and Page, and Jones, be compelle

to appear in court on June 14, 2016. Plaintiff merely requests a formal order

guarantee that he will be able to cross examine them in his case in chief so that hcan have certainty over his witnesses and plan his allotted 10 hours appropriately.

DEFENDANTS HAVE REPEATEDLY REFUSED TO CLARIFY WHE

DEFENDANTS PLANT AND PAGE, AND JONES, WILL APPEAR

Even if Defendants are correct that the geography limits in Rule 45 applies

them, they ignore that Defendant Plant and John Paul Jones regularly condu

business in Los Angeles and California in person. Under FRCP 45(c), this mean

they can be compelled to attend by the Court.

Under Federal Rule of Civil Procedure 45(c), a party or witness may b

compelled to testify if they regularly appear in person in the state to condu

business. Plaintiff thus asks that Robert Plant and John Paul Jones be compelled

attend as they regularly conduct business in California. Given that they are mult



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millionaires many times over, and are already attending trial, compelling the

attendance presents to no actual financial difficulty.

DEFENDANT ROBERT PLANT AND JOHN PAUL JONES REGULARL

CONDUCT BUSINESS IN PERSON IN LOS ANGELES AND CALIFORNIA

Defendant Robert Plant

Robert Plant is a touring musician and regularly plays shows in Los Angele

and California. His most recent tour dates are (see setlist.fm):

June 2, 2015 – Greek Theatre, Los Angeles, CA

May 31, 2015 – Santa Barbara Bowl, Santa Barbara, CA

May 30, 2015 – Napa Valley Exposition, Napa, CA

Oct. 7, 2014 – Hollywood Palladium, Los Angeles, CA

June 29, 2013 – Greek Theatre, Berkeley BA

June 28, 2013 – Santa Barbara Bowl, Santa Barbara, CA

June 26, 2013 – Shrine Auditorium, Los Angeles, CA

Sept. 30, 2011 – Golden Gate Park, San Francisco, CA

June 8, 2011 – Copley Symphony Hall, San Diego, CA

April 25, 2011 – Santa Barbara Bowl, Santa Barbara, CA

April 23, 2011 – Greek Theatre, Los Angeles, CA

April 22, 2011 – Greek Theatre, Berkeley, CA

Plaintiff anticipates that defendant Plant likely does far more business in Lo

Angeles in person than his public tour schedule would indicate. However, his rece

touring schedule indicates that Plant does more than enough business in Californ

in person for the Court to compel his attendance under Rule 45(c).

Witness John Paul Jones

John Paul Jones is a touring musician who appears in Los Angeles an

California regularly based on his own website (http://www.johnpauljone

com/gigs.html):



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Oct. 6, 2014 – Cathedral Sanctuary at Immanual Presbyterian, Los

Angeles, CA

Oct. 5, 2014 – Lobero Theatre, Santa Barbara, CA

Oct. 4, 2014 – Hardly Strictly Bluegrass Festival, San Fran, CA Oct. 3, 2014 – Gundlach Bundschu Winery, Sonoma, CA

Oct. 1, 2014 – Cocoanut Grove, Santa Cruz, CA

Sept. 30, 2014 – Cascade Theatre, Redding, CA

Sept. 28, 2014 – Van Duzer Theatre, Arcata, CA

Plaintiff suspects that Jones appears in person in Los Angeles to conduct busine

far more than just these tour dates. For instance, he records with Los Angeles-base

band Them Crooked Vultures. See Jim Easterhouse, “Robert Plant, John Paul Jone

set for separate upcoming L.A. shows,” Los Angeles Times (Aug. 7, 2014

(accessed May 7, 2016), available at http://www.latimes.com/entertainment/mus

/posts/la-et-ms-robert-plant-los-angeles-concert-20140807-story.html. When tourin

with Them Crooked Vultures, besides recording in Los Angeles, he appeared

California on the following dates (setlist.fm):

April 16, 2010 – Coachella, Indio, CA April 14, 2010 – Club Nokia, Los Angeles, CA

April 12, 2010 – Jimmy Kimmel Live, Los Angeles, CA

Nov. 19, 2010 – Fox Theater, Oakland, CA

Nov. 18, 2010 – Wiltern Theatre, Los Angeles, CA

Nov. 16, 2010 – The Roxy, West Hollywood, CA

Thus, Plant and Jones should be compelled to appear and testify on the bas

that they regularly appear in Los Angeles and California to conduct business. Agai

Plant, Jones, and Paul all consented to jurisdiction in Los Angeles. They cannot no

claim they are outside of the Court’s subpoena’s powers.

PLAINTIFF REQUESTS AN ORDER ALLOWING HIS DEPOSITIO

DESIGATIONS TO BE USED AT TRIAL



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As noted above, Defendants refusal to specify if they will appear is causin

havoc with Plaintiff’s designations. Because Defendants and Jones are not bein

clear whether they will attend, Plaintiff is being forced to be overly careful an

designate more deposition testimony that he will need if they appear. Thodesignations were served on Defendants on May 5, 2016. This uncertainty

extremely costly as Plaintiff is also having to edit hours of video depositio

testimony. It is also a significant problem, as Plaintiff has noted above, because it

making it difficult to schedule witnesses and utilize the ten hours the Court h

allotted to each side.

In addition, despite the fact that Defendants have Plaintiff’s designations o

their deposition testimony 40 days before the June 14, 2016 trial, Defendants ar

claiming that they will object to use of any designation testimony. Plaintiff spent ten

of thousands of dollars flying to London and videoing these depositions for trial; h

is absolutely entitled to use them, especially if Defendants and Jones do not appea

Plaintiff requests an order affirming that he is entitled to use the deposition testimon

of Plant, Page, and Jones in his ten hours, if he see fit.

CONCLUSION

For the foregoing reasons, Plaintiff requests that the Court compel th

attendance of defendants Robert Plant and James Patrick Page, and witness Joh

Paul Jones at trial for testimony in Plaintiff’s case in chief. Furthermore, Plainti

requests an order confirming that Plaintiff is entitled to use the video depositio

testimony of Defendants and Jones as part of the ten hours the Court has allowed f

Plaintiff to present his case.

If Defendants and Jones refuse to appear in Plaintiff’s case in chief Plainti

asks that (1) they not be allowed to testify live at all, (2) a negative inference b

drawn against them for failing to appear and testify, and (3) a default be entere

against Defendants.



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*****

Respectfully submitted,

Francis Alexander, LLC

/s/ Francis Alexander Malofiy

Francis Alexander Malofiy, EsquireAttorney ID No.: 208494280 N. Providence Road | Suite 1Media, PA 19063T: (215) 500-1000F: (215) 500-1005E: [email protected]

/d/ May 17, 2016



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CERTIFICATE OF SERVICE

Plaintiff hereby represents that Plaintiff’s Motion to Compel Trial Testimony has be

served upon counsel by the electronic filing system:

Helene Freeman, Esquire 666 Fifth Avenue New York, NY 10103-0084T: (212) 841-0547F: (212) 262-5152E: [email protected] Attorneys for Defendants James Patrick Page, Robert Anthony Plant, and John Paul Jone

(collectively with John Bonham (Deceased), professionally known as Led Zeppelin)

Peter J. Anderson, Esquire100 Wilshire Blvd. | Suite 2010

Santa Monica, CA 90401T:(310) 260-6030F: (310) 260-6040E: [email protected] Attorney for Defendants Super Hype Publishing, Inc., Warner Music Group Corp.,

Warner/Chappell Music, Inc., Atlantic Recording Corporation, and

Rhino Entertainment Company; James Patrick Page, Robert Anthony Plant, and John Pa

Jones

***** Respectfully submitted,

Francis Alexander, LLC

/s/ Francis Alexander MalofiyFrancis Alexander Malofiy, EsquireAttorney ID No.: 208494280 N. Providence Road | Suite 1Media, PA 19063T: (215) 500-1000F: (215) 500-1005

E: [email protected] /d/ May 17, 2016


Skidmore v. Led Zeppelin - motion to compel Page and Plant.pdf

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Transcript of Skidmore v. Led Zeppelin - motion to compel Page and Plant.pdf